Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 1 of 41

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

6 Deputy City Attorneys

City Hall, Room 234

7 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

8 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

9 E-Mail:

brittany.feitelberg@sfgov.org

10 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
11

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 CITY AND COUNTY OF SAN

Case No.

FRANCISCO,

16

Plaintiff,

17

vs.

COMPLAINT FOR DECLARATORY AND

18

INJUNCTIVE RELIEF

DONALD J. TRUMP, President of the United

19 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of United States

20 Department of Homeland Security, DANA J.

BOENTE, Acting Attorney General of the

21 United States, DOES 1-100,

22

Defendants.

23

24

25

26

27

28

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1

INTRODUCTION

2

1. The City and County of San Francisco (“San Francisco”) seeks declaratory and

3 injunctive relief against the United States of America and the above-named federal officials for

4 violating the Tenth Amendment, U.S. Const. amend. X. San Francisco further seeks a declaration that

5 it complies with Title 8, Section 1373 of the United States Code (“Section 1373”) under the

6 Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et seq.

7

2. In blatant disregard of the law, the President of the United States seeks to coerce local

8 authorities into abandoning what are known as “Sanctuary City” laws and policies. To accomplish this

9 objective, on January 25, 2017, the President issued an Executive Order entitled, “Enhancing Public

10 Safety in the Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)

11 (“Executive Order”). The Executive Order announces that it is the Executive Branch’s policy to

12 withhold federal funds from “sanctuary jurisdictions,” and directs the Attorney General and Secretary

13 of Homeland Security to ensure that sanctuary jurisdictions do not receive Federal grants, and directs

14 the Attorney General to take enforcement action against any local entity that “hinders the enforcement

15 of Federal law.” This strikes at the heart of established principles of federalism and violates the United

16 States Constitution.

17

3. The President and San Francisco agree that San Francisco is a Sanctuary City, but

18 disagree about what that means. San Francisco laws limit when city employees and agencies may

19 assist with the enforcement of federal immigration law. These laws generally prohibit city employees

20 from using city funds or resources to assist in the enforcement of federal immigration law, unless

21 required by federal or state law. They specifically prohibit local law enforcement officers from

22 cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are

23 voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s

24 release from local jail.

25

4. Like many other cities, San Francisco is a city of immigrants, many of whom are

26 undocumented, who come here to live, work, and raise families. San Francisco is safer when all

27 people, including undocumented immigrants, feel safe reporting crimes. San Francisco is healthier

28 when all residents, including undocumented immigrants, access public health programs. And San

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1 Francisco is economically and socially stronger when all children, including undocumented

2 immigrants, attend school. Using city and county resources for federal immigration enforcement

3 breeds distrust of local government and officials who have no power to change federal laws, and can

4 also wrench apart family and community structures that support residents and thus conserve resources.

5 For these reasons, among others, San Francisco has directed its employees and officers not to assist the

6 Federal government in enforcing federal immigration law, with limited exceptions.

7

5. San Francisco faces the imminent loss of federal funds and impending enforcement

8 action if it does not capitulate to the President’s demand that it help enforce federal immigration law.

9 At least one jurisdiction has already succumbed to this presidential fiat.

10

6. The Executive Order relies on Title 8, Section 1373 of the United States Code (“Section

11 1373”), which provides that local governments may not prohibit or restrict any government entity or

12 official from “sending to, or receiving from, [federal immigration officials] information regarding the

13 citizenship or immigration status . . . of any individual.” San Francisco seeks declaratory relief that its

14 Sanctuary City laws comply with Section 1373. San Francisco does not prohibit or restrict its

15 employees from sharing information about the citizenship or immigration status of any individual with

16 federal immigration officials.

17

7. The Executive Order is a severe invasion of San Francisco’s sovereignty. The

18 Executive Order not only interferes with San Francisco’s ability to direct the official actions of its

19 officers and employees but also threatens new consequences for failing to comply with 1373. In this

20 action, San Francisco seeks declaratory relief that Section 1373 is unconstitutional on its face and as

21 applied to state and local Sanctuary City laws such as San Francisco’s. The Executive Branch may not

22 commandeer state and local officials to enforce federal law.

23

8. The Constitution establishes a balance of power between the state and Federal

24 governments, as well as among the coordinate branches of Federal government, to prevent the

25 excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from

26 any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated

27 to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

28

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1 respectively, or to the people.” This state sovereignty extends to political subdivisions of the State,

2 including cities and counties such as San Francisco.

3

9. This lawsuit is about state sovereignty and a local government’s autonomy to devote

4 resources to local priorities and to control the exercise of its own police powers, rather than being

5 forced to carry out the agenda of the Federal government. Under the Constitution and established

6 principles of federalism, state and local governments have this autonomy. The Executive Order

7 purports otherwise to wrest this autonomy from state and local governments, and a court order is

8 needed to resolve this controversy.

9

10. San Francisco recognizes that there will be additional developments related to the

10 Executive Order in the weeks and months to come. But the consequences threatened by the Executive

11 Order are too severe for San Francisco to wait. The Executive Order threatens the loss of more than $1

12 billion in federal funds that support vital services, the loss of community trust, and the loss of San

13 Francisco’s sovereign authority to set and follow its own laws on matters appropriately and

14 historically within the control of local government. San Francisco has no choice but to seek the

15 intervention of this Court to ensure that its rights and residents are protected, and that the

16 Administration complies with Federal law and the Constitution.

17

JURISDICTION AND VENUE

18

11. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

19 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

20 seq.

21

12. Venue properly lies within the Northern District of California because Plaintiff, City

22 and County of San Francisco, resides in this judicial district and a substantial part of the events or

23 omissions giving rise to this action occurred in this District. 28 U.S.C. §1391(e).

24

PARTIES

25

13. Plaintiff, City and County of San Francisco (“San Francisco”), is a municipal

26 corporation organized and existing under and by virtue of the laws of the State of California, and is a

27 charter city and county.

28

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1

14. Defendant Donald J. Trump is the President of the United States. He is sued in his

2 official capacity.

3

15. Defendant United States of America is sued under 28 U.S.C. Section 1346.

4

16. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the

5 United States Federal government with the primary mission of securing the United States. Defendant

6 John F. Kelly is the Secretary of DHS. Secretary Kelly is responsible for executing relevant provisions

7 of the Executive Order. Secretary Kelly is sued in his official capacity.

8

17. The Attorney General (“AG”) is a cabinet department of the United States Federal

9 government overseeing the Department of Justice. Defendant Dana J. Boente is the Acting Attorney

10 General. Acting Attorney General Boente is responsible for executing relevant provisions of the

11 Executive Order. Acting Attorney General Dana J. Boente is sued in his official capacity.1

12

18. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the

13 true names or capacities of said Defendants, who were responsible for the alleged violations alleged,

14 but pray that the same may be alleged in this complaint when ascertained.

15

FACTUAL ALLEGATIONS

16 I. SAN FRANCISCO’S SANCTUARY CITY LAWS

17

19. San Francisco is a Sanctuary City and has been since 1989. In the 1980s, thousands of

18 Central American refugees fled countries in the midst of violent civil wars to seek legal protection in

19 the United States. Against the backdrop of this humanitarian crisis, San Francisco began enacting the

20 ordinances that, as later amended, make up San Francisco’s Sanctuary City laws.

21

20. Numerous other municipalities—including New York, D.C., Chicago, Los Angeles,

22 New Orleans, Santa Clara, Minneapolis, and Houston—have also enacted Sanctuary City laws.

23 Although the details of their ordinances differ, all of these jurisdictions have adopted laws or policies

24 that limit using local resources to implement and enforce federal immigration laws.

25

21. Today, San Francisco’s body of Sanctuary City law is contained in two chapters of San

26 Francisco’s Administrative Code: Chapters 12H and 12I.

27 1 Jeff Sessions has been nominated to serve as Attorney General and will replace Acting
28 Attorney General Dana J. Boente, if confirmed.

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1

22. Importantly, these chapters do not protect criminals or prevent people from being

2 prosecuted for illegal acts. Instead, they protect children by ensuring that their parents feel safe taking

3 them to playgrounds, to schools, and to hospitals. They protect families from being split up when

4 parents of children born in the United States are deported. And they protect the safety and health of all

5 residents of San Francisco by helping to ensure that everyone, including undocumented immigrants,

6 feels safe reporting crimes, cooperating with police investigations, and seeking medical treatment.

7 Specifically, Chapters 12H and 12I apply as follows.

8

23. San Francisco Administrative Code Chapter 12H—the full text of which is attached as

9 Exhibit 1—prohibits San Francisco departments, agencies, commissions, officers, and employees from

10 using San Francisco funds or resources to assist in the enforcement of Federal immigration law or to

11 gather or disseminate information regarding the release status, or other confidential identifying

12 information, of an individual unless such assistance is required by Federal or state law.

13

24. San Francisco Administrative Code Chapter 12I—the full text of which is attached as

14 Exhibit 2—prohibits San Francisco law enforcement officials from detaining an individual who is

15 otherwise eligible for release from custody on the basis of a civil immigration detainer request issued

16 by the Federal government.

17

25. Section 287.7 of Title 8 of the Code of Federal Regulations provides that such a

18 detainer “serves to advise another law enforcement agency that the Department seeks custody of an

19 alien presently in the custody of that agency, for the purpose of arresting and removing the alien.”

20 Subsection (d) provides that “[u]pon a determination by the Department to issue a detainer for an alien

21 not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien

22 for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit

23 assumption of custody by the Department.”

24

26. A detainer request issued under this section is distinct from a criminal warrant, which

25 San Francisco honors consistent with its Sanctuary City laws. A detainer request is not issued by a

26 judge and is not based on a finding of probable cause. It is simply a request by ICE that a state or local

27 law enforcement agency hold individuals after their release date to provide ICE agents extra time to

28 decide whether to take those individuals into federal custody and then deport them.

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1

27. Complying with such a detainer request requires committing scarce law enforcement

2 personnel and resources to track and respond to requests, detain individuals in holding cells, and

3 supervise and feed individuals during the prolonged detention. And the Federal government has made

4 clear that the local agency bears the financial burden of the detention, providing that “[n]o detainer

5 issued as a result of a determination made under this chapter . . . shall incur any fiscal obligation on the

6 part of the Department.” 8 C.F.R. 287(e).

7

28. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

8 a federal immigration officer’s request for advance notification of the date and time an individual in

9 San Francisco’s custody is being released, unless the in question meets certain criteria. See Section

10 12I.3(c), (d).

11

29. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall

12 not arrest or detain an individual, or provide any individual’s personal information to a federal

13 immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil

14 immigration document based solely on alleged violations of the civil provisions of immigration laws.”

15 See Section 12I.3(e). “Personal information” is defined as “any confidential, identifying information

16 about an individual, including, but not limited to, home or work contact information, and family or

17 emergency contact information.” See Section 12I.2.

18

30. The legislative findings set forth in Chapter 12I evidence the legitimate local purpose of

19 San Francisco’s Sanctuary City laws. For example, the Legislature declared:

20

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

21

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

22

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

23

cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure

24

community security, and due process for all. (See Section 12I.2.)

25

31. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to

26 federal civil immigration detainers, notification of release of individuals, transmission of personal

27 information, or civil immigration documents, based solely on alleged violations of the civil provisions

28 of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement

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1 agencies may continue to collaborate with federal authorities to protect public safety.” See Section

2 12I.4.

3

32. Further underscoring that San Francisco’s Sanctuary City laws arise from San

4 Francisco’s commitment and responsibility to ensure public safety and welfare, the Board of

5 Supervisors, as San Francisco’s legislative body, found that public safety is “founded on trust and

6 cooperation of community residents and local law enforcement.” Section 12I.1. Citing a study by the

7 University of Illinois, which found that at least 40% of Latinos surveyed were less likely to provide

8 information to police because they feared exposing themselves, family, or friends to a risk of

9 deportation, the Legislature stated that “civil immigration detainers and notifications regarding release

10 undermine community trust of law enforcement by instilling fear in immigrant communities of coming

11 forward to report crimes and cooperate with local law enforcement agencies.” Id.; see also id. (“The

12 City has enacted numerous laws and policies to strengthen communities and to build trust between

13 communities and local law enforcement. Local cooperation and assistance with civil immigration

14 enforcement undermines community policing strategies.”).

15

33. The Board of Supervisors also had a public health purpose for its decision to restrict

16 disclosure of confidential information: “To carry out public health programs, the City must be able to

17 reliably collect confidential information from all residents . . . . Information gathering and cooperation

18 may be jeopardized if release of personal information results in a person being taken into immigration

19 custody.” Id.

20

34. Finally, the Board of Supervisors determined that enforcing immigration detainer

21 requests would require San Francisco to redirect scarce local law enforcement personnel and

22 resources—noting that the costs of “responding to a civil immigration detainer can include, but [are]

23 not limited to, extended detention time, the administrative costs of tracking and responding to

24 detainers, and the legal liability for erroneously holding an individual who is not subject to a civil

25 immigration detainer.” Id. In short, the Board of Supervisors concluded that “[c]ompliance with civil

26 immigration detainers and involvement in civil immigration enforcement diverts limited local

27 resources from programs that are beneficial to the City.” Id.

28

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1

35. San Francisco departments have adopted policies and practices consistent with

2 Chapters 12H and 12I.

3

36. California law incorporates local Sanctuary City laws such as Chapters 12H and 12I.

4 The TRUST Act states that that local law enforcement officials may comply with ICE detainer

5 requests only if (1) the continued detention would not violate any federal, state, or local law, or any

6 local policy, and (2) the defendant’s criminal history meets specified conditions. Cal. Gov’t Code

7 §§ 7282, 7282.5. Thus, because in San Francisco ICE detentions are prohibited under local law, they

8 are also prohibited under state law.

9 II. SECTION 1373

10

37. Section 1373 provides that “a local government entity or official may not prohibit, or in

11 any way restrict, any government entity or official from sending to, or receiving from, [federal

12 immigration officials] information regarding the citizenship or immigration status . . . of any

13 individual.” 8 U.S.C. § 1373(a). This restriction exclusively regulates government entities.

14

38. Section 1373 requires San Francisco to allow its employees to use city resources,

15 including San Francisco tax dollars, to respond to requests for information about citizenship and

16 immigration status.

17

39. On May 31, 2016, in response to a request from the Office of the Attorney General, the

18 Office of the Inspector General (“OIG”) of the Department of Justice issued a memorandum (“OIG

19 Memo”) regarding potential violations of Section 1373 by recipients of funding from the Edward

20 Byrne Memorial Justice Assistance Grant Program (“JAG”). Memorandum from Michael E.

21 Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs,

22 “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant

23 Recipients” (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.2

24

40. In analyzing the local laws and policies of ten selected state and local jurisdictions, the

25 OIG demonstrated how the Federal government interprets Section 1373.

26 2 The authorizing legislation for the JAG program requires that all grant applicants certify
27 compliance with the provisions of the authorizing legislation and all other “applicable federal laws.” 42 U.S.C. § 3750 et seq. The U.S. Department of Justice, Office of Justice Programs has recently
28 announced that Section 1373 is an “applicable” law under the JAG authorizing legislation.

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1

41. For example, though Section 1373 does not expressly address immigration detainers,

2 OIG expressed concern that local laws concerning the handling of detainer requests “may have a

3 broader practical impact on the level of cooperation afforded to ICE by these jurisdictions and may,

4 therefore, be inconsistent with at least the intent of Section 1373.” OIG Memo at 7. It went on to state

5 that local laws and policies that “purport to be focused on civil immigration detainer requests [and say

6 nothing about sharing immigration status with ICE] . . . may nevertheless be affecting ICE’s

7 interactions with the local officials regarding ICE immigration status requests.” Id.

8

42. OIG also stated that such immigration detainer request policies “may be causing local

9 officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE

10 in all respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id.

11 at 8.

12

43. In the OIG Memo, the Federal government also endorses the view that local

13 jurisdictions hinder the enforcement of Federal immigration law if they do not honor detainer requests

14 or if they place any other limitations on cooperation with ICE. See, e.g., id. at 4 (stating that even

15 though Section 1373 does not specifically address restrictions by state or local entities on cooperation

16 with ICE regarding detainers, “[a] primary and frequently cited indicator of limitations placed on

17 cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction

18 handles immigration detainer requests issued by ICE”).

19

44. In the OIG Memo, OIG recommended that the U.S. Department of Justice, Office of

20 Justice Programs (“OJP”) provide JAG recipients clear guidance on their obligation to comply with

21 Section 1373 and require them to certify that they comply with that section. See id. at 9.

22

45. In response to these recommendations, in July and October 2016 OJP issued guidance

23 regarding compliance with Section 1373. See Office of Justice Programs, Guidance Regarding

24 Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just. (July 7, 2016) (“OJP July Guidance”); Office of

25 Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just.

26 (October 6, 2016) (“OJP October Guidance”).

27

46. In the OJP July Guidance, OJP stated that to comply with Section 1373, “[y]our

28 personnel must be informed that notwithstanding any state or local policies to the contrary, federal law

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1 does not allow any government entity or official to prohibit the sending or receiving of information

2 about an individual’s citizenship or immigration status with any federal, state or local government

3 entity and officials.” OJP July Guidance at 1 (emphasis added). Accordingly, OJP reads into the law

4 an affirmative obligation to instruct personnel regarding the substance of Section 1373.

5

47. In the October 2016 Guidance, OIG stated that all JAG applicants must comply with—

6 and certify their compliance with—Section 1373. OJP October Guidance at 1.

7

48. As a subgrantee of a JAG grant, San Francisco is required to certify its compliance with

8 Section 1373.

9 III. SAN FRANCISCO COMPLIES WITH SECTION 1373

10

49. San Francisco complies with Section 1373.

11

50. The plain language of Section 1373 states that “a local government entity or official

12 may not prohibit, or in any way restrict, any government entity or official from sending to, or

13 receiving from, [federal immigration officials] information regarding the citizenship or immigration

14 status . . . of any individual.” 8 U.S.C. § 1373(a). Nothing in San Francisco Administrative Code

15 Chapters 12H or 12I limits communications regarding citizenship or immigration status in any way.

16

51. And, indeed, under ICE’s Secure Communities program (also known as “S-Comm”)

17 whenever an individual is taken into custody, the person is digitally fingerprinted and those

18 fingerprints are sent to the California Department of Justice and ultimately the FBI. The FBI forwards

19 the fingerprints to DHS, which allows ICE to determine the immigration status of everyone in San

20 Francisco custody.

21

52. Under Chapter 12I and the TRUST Act, San Francisco does not enforce detainer

22 requests (see ¶24, supra), and does not respond to notification requests from the Federal government

23 unless certain conditions are met (see ¶28, supra)—but compliance with such requests is not, in fact,

24 required by Section 1373, which speaks only to communications regarding citizenship and

25 immigration status. By contrast, San Francisco does comply with criminal warrants.

26

53. Also, complying with civil immigration detainer requests alone, in the absence of

27 probable cause for the detainer, would violate the Fourth Amendment to the United States Constitution

28 and could subject San Francisco to civil liability for this harm. See Arizona v. United States, 132 S. Ct.

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1 2492, 2509 (2012) (noting that “[d]etaining individuals solely to verify their immigration status would

2 raise constitutional concerns”); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); see also

3 Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to

4 immigration arrests).

5

54. San Francisco has affirmatively instructed personnel regarding the substance of Section

6 1373. For example, in a recent memorandum to all San Francisco employees, the San Francisco

7 Human Resources Director explained: “Although federal law states that a ‘local government entity or

8 official may not prohibit, or in any way restrict, any government entity or official from sending to, or

9 receiving from, the Immigration and Naturalization Service information regarding the citizenship or

10 immigration status, lawful or unlawful, of any individual’ (8 U.S.C. § 1373), Chapters 12H and 12I

11 impose other types of restrictions, which are consistent with federal law and are summarized below.”

12 IV. THE EXECUTIVE ORDER

13

55. On January 25, 2017, President Donald J. Trump issued the Executive Order attached

14 as Exhibit 3.3

15

56. The Executive Order declares that “Sanctuary jurisdictions across the United States

16 willfully violate Federal law in an attempt to shield aliens from removal from the United States. These

17 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

18 Republic.” Executive Order, at 8799.

19

57. To address the purported harm caused by Sanctuary Cities, the Executive Order

20 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not receive

21 Federal funds, except as mandated by law.” Id.

22

23 3 On January 27, 2017, President Trump issued a second Executive Order relating to
24 immigration issues entitled, “Protecting The Nation From Foreign Terrorist Entry Into The United States.” The January 27, 2017 Executive Order barred individuals from certain countries from entering
25 the United States. Since its issuance, five courts have issued orders granting temporary relief against the January 27, 2017 Executive Order. See Darweesh v. Trump, United States District Court, Eastern
26 District of New York, Case No. 17 Civ. 480; Tootkaboni v. Trump, United States District Court, District of Massachusetts, Case No. 17-cv-10154; Aziz v. Trump, United States District Court, Eastern
27 District of Virginia, Case No. 1:17-cv-116; Doe v. Trump, United States District Court, Western District of Washington, Case No. 17-cv-00126; Vayeghan v. Trump, United States District Court,
28 Central District of California, Case No. CV 17-0702.

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1

58. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

2 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a

3 State, shall comply with 8 U.S.C. 1373.” Id. at 8801.

4

59. The Executive Order establishes a funding restriction:

5

In furtherance of this policy, the Attorney General and the Secretary, in their discretion

6

and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

7

Federal grants, except as deemed necessary for law enforcement purposes by the

Attorney General or the Secretary. The Secretary has the authority to designate, in his

8

discretion and to the extent consistent with law, a jurisdiction as a sanctuary

jurisdiction. 9

10 Id. (the “Funding Restriction”).

11

60. The Funding Restriction imposes new funding conditions on existing federal funds that

12 go beyond the statutory conditions imposed by Congress.

13

61. Also, the Funding Restriction imposes funding conditions that are not germane to the

14 purpose of the funds insofar as it reaches funds that are unrelated to law enforcement or immigration.

15

62. The Funding Restriction also imposes conditions so severe that they cross the line

16 distinguishing encouragement from coercion. The Funding Restriction threatens a significant percent

17 of San Francisco’s overall budget, including virtually the entire funding stream for critical programs to

18 its residents, such as Medicaid.

19

63. Finally, the Funding Restriction imposes new funding conditions that require

20 jurisdictions to act unconstitutionally insofar as Defendants interpret Section 1373 to require San

21 Francisco to detain individuals who would otherwise be released from custody. Such detentions would

22 violate, inter alia, the Fourth Amendment.

23

64. For all these reasons, the Funding Restriction violates the Tenth Amendment, the

24 Spending Clause, and Article 1, sec. 1 of the United States Constitution.

25

65. The Executive Order also mandates enforcement action:

26

The Attorney General shall take appropriate enforcement action against any entity that

violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents

27

or hinders the enforcement of Federal law.

28 Id. (the “Enforcement Directive”).

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1

66. The Enforcement Directive commandeers state and local governments by, inter alia,

2 compelling them to enforce federal law under threat of legal action, violating Tenth Amendment to the

3 United States Constitution.

4 V. 5

DEFENDANTS CHARACTERIZE SAN FRANCISCO AS A SANCTUARY CITY THAT WILL LOSE FEDERAL FUNDING

6

67. In the Executive Order, Defendants equate Sanctuary Cities with jurisdictions that fail

7 to comply with Section 1373.

8

68. Defendants characterize San Francisco as a Sanctuary City.

9

69. For example, in a written campaign speech then-candidate Donald J. Trump gave in

10 Phoenix, Arizona on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City. See

11 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

12 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration (“Another

13 victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant

14 deported five previous times.”).

15

70. Not only have Defendants made clear that they consider San Francisco a Sanctuary

16 City, but they have also repeatedly indicated that Sanctuary Cities, like San Francisco, violate federal

17 law and should have their federal funding revoked.

18

• In statements to the Daily Caller on July 7, 2015, Congressman Darrell Issa and

19

Attorney General nominee Senator Jeff Sessions criticized San Francisco and other

20

sanctuary jurisdictions for failing to honor detainers. Attorney General nominee

21

Senator Jeff Sessions stated, “This disregarding of detainers and releasing persons

22

that ICE has put a hold on — it goes against all traditions of law enforcement. Laws

23

and courtesies within departments — if you have somebody charged with a crime in

24

one city, you hold them until you complete your business with them . . . . So what

25

was happening was, ICE authorities were filing detainers and sanctuary cities were

26

saying, ‘We’re not gonna honor them. They finished paying for the crime they

27

committed in our city — we’ve released them.’” Kerry Picket, Sen. Sessions: City

28

Officials Harboring Illegal Immigrant Felons Could Be Charged with Crime, Daily

COMPLAINT: CCSF v. TRUMP

13

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 15 of 41

1

Caller (July 7, 2015, 10:07 PM), http://dailycaller.com/2015/07/07/sen-sessions-

2

city-officials-harboring-illegal-immigrant-felons-could-be-charged-with-

3

crime/#ixzz4XE9I12Ux.

4

• On July 8, 2015, Attorney General nominee Senator Jeff Sessions gave a speech to

5

Congress describing San Francisco as “a jurisdiction that is known to release illegal

6

immigrants back into the public,” and one which refused to “honor” a detainer

7

sought by federal authorities. News Release, Office of Senator Jeff Sessions,

8

Senator Sessions Calls on Congress To Take Up Immigration Reform for

9

Americans (July 9, 2015), http://www.sessions.senate.gov/public/index.cfm/news-

10

releases?ID=B7A98B63-8ECA-4A4E-B5C8-4A665F2343DE.

11

• In an interview with Breitbart News in May 2016, then-candidate Donald J. Trump

12

stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and

13

people that should not have a safe-haven in many cases. It’s just unacceptable.

14

We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive —

15

Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’

16

Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016),

17

http://www.breitbart.com/2016-presidential-race/2016/05/16/exclusive-donald-j-

18

trump-to-san-francisco-sanctuary-cities-unacceptable-a-disaster-creating-safe-

19

haven-for-criminals/. This Breitbart news report further stated that, “Trump’s

20

comments . . . come in response to efforts by far left progressive organizations in

21

San Francisco to expand that city’s sanctuary city laws.” Id.

22

• Another Breitbart News article published on November 21, 2016 regarding

23

Sanctuary Cities quoted Texas Republican Congressman John Culberson as stating,

24

“The law requires cooperation with immigration officials 100 percent of the time.”

25

Bob Price, Sanctuary Cities Risk Losing DOJ Funds in 2017, Texas Congressman

26

Says, Breitbart News (Nov. 21, 2016),

27

http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds-

28

2017-texas-congressman-says/.

COMPLAINT: CCSF v. TRUMP

14

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 16 of 41

1

• In a statement by White House Press Secretary Sean Spicer on January 25, 2017

2

announcing the issuance of the Executive Order, Spicer stated, “We are going to

3

strip federal grant money from the sanctuary states and cities that harbor illegal

4

immigrants. The American people are no longer going to have to be forced to

5

subsidize this disregard for our laws.” White House, 1/25/17: White House Press

6

Briefing, YouTube (Jan. 25, 2017),

7

https://www.youtube.com/watch?v=OaPriMVvtZA.

8

71. In a speech at the GOP Congressional Republican Retreat in Philadelphia on January

9 26, 2017, President Trump reiterated his views on Sanctuary Cities: “And finally, at long last, cracking

10 down on Sanctuary Cities. It’s time to restore the civil rights of Americans to protect their jobs, their

11 hopes, and their dreams for a much better future. Congress passed these laws to serve our citizens. It

12 is about time those laws were properly enforced. They are not enforced.” See Donald J. Trump,

13 President Trump Remarks at Congressional Republican Retreat, C-Span (Jan 26, 2017),

14 https://www.c-span.org/video/?422829-1/president-trump-tells-congressional-republicans-now-

15 deliver.

16

72. A press release from the Office of the Press Secretary for the White House issued on

17 January 28, 2017 detailing President Trump’s First Week of Action, reads in relevant part: “President

18 Trump signed an executive order to ensure that immigration laws are enforced throughout the United

19 States, including halting federal funding for sanctuary cities.” Press Release, The White House, Office

20 of the Press Secretary, President Trump’s First Week of Action (Jan. 28, 2017),

21 https://www.whitehouse.gov/the-press-office/2017/01/28/president-trumps-first-week-action.

22

73. Defendants’ statements establish their view that Sanctuary Cities, like San Francisco,

23 violate Section 1373 and will lose federal funding—apparently all or almost all federal funding—

24 under the Executive Order.

25 VI. SECTION 1373 AND THE EXECUTIVE ORDER HARM SAN FRANCISCO

26

A. Section 1373(a) Impermissibly Intrudes on State Sovereignty

27

74. Section 1373(a) unconstitutionally regulates “States in their sovereign capacity.” Reno,

28 v. Condon, 528 U.S. 141, 151 (2000). It necessarily regulates governments in their capacities as

COMPLAINT: CCSF v. TRUMP

15

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 17 of 41

1 governments. It does not “subject state governments to generally applicable laws.” New York v. U.S.,

2 505 U.S. 144, 160 (1992). On the contrary, in every possible application, it targets “government

3 entit[ies] or official[s]” for special treatment. 8 U.S.C. § 1373(a).

4

75. Congress may not command States to provide the Federal government with information

5 “that only state officials have access to,” Printz v. United States, 521 U.S. 898, 932 n.17 (1997). The

6 Federal government must not regulate its fellow governments in their capacities as governments.

7

76. Also, Section 1373 targets government entities’ and officials’ authority to control their

8 subordinates—an authority at the heart of a government’s existence as a government. “[A] State can

9 act only through its officers and agents.” Nevada v. Hicks, 533 U.S. 353, 365 (2001). “Through the

10 structure of its government, and the character of those who exercise government authority, a State

11 defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

12

77. By preventing state and local governments from directing employees how to handle

13 information about citizenship and immigration status, Section 1373 makes it impossible for local

14 jurisdictions freely to choose and clearly to establish how they will handle this information. Under

15 Section 1373, San Francisco cannot legislate or regulate that government officials and employees will

16 never share citizenship or immigration information. Yet Congress has no power “to require the States

17 to govern according to Congress’ instructions.” New York, 505 U.S. at 162 (emphasis added).

18

78. Section 1373 mandates uncertainty where Sanctuary City laws seek to provide

19 certainty. Because of Section 1373, San Francisco cannot tell the public that it will never share

20 information about citizenship or immigration status. Any attempt to impose a uniform rule is fettered

21 by the individual discretion of over 30,000 employees and officials. This is not the way San Francisco

22 chooses to govern. It is chaos imposed by the Federal government.

23

79. To the extent the Executive Order incorporates Section 1373(a), it is invalid for all of

24 the reasons described above.

25

B. Federal Funds Received by San Francisco

26

80. San Francisco receives in excess of $1.2 billion annually in federal funds. This is

27 approximately 13% of San Francisco’s annual budget.

28

COMPLAINT: CCSF v. TRUMP

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 18 of 41

1

81. Only a small percentage of all federal funds received by San Francisco relate to

2 immigration or law enforcement.

3

82. San Francisco receives federal funds for entitlement programs for its residents

4 including Medicaid and Medicare, Temporary Assistance to Needy Families, Supplemental Nutrition

5 Assistance Program, Foster Care, Child Welfare Programs, and Child Support Services.

6

83. San Francisco also receives federal grants for infrastructure and transportation projects,

7 public health programs, workforce development, supportive housing, and veterans’ services, among

8 other things.

9

84. Congress has established numerous conditions governing eligibility for these funds. For

10 instance, to receive Medicaid funds, a state must create a state plan that includes assurances to the

11 Federal government that the state will provide specified types of care and that the state regulates health

12 insurance providers to ensure access to medical assistance, among many other requirements. 42 U.S.C.

13 § 1396(a).

14

85. As with entitlement programs, most federal grants are awarded based on statutory

15 eligibility criteria. For example, HUD Community Development Block Grants fund many projects to

16 combat evictions, maintain stable housing occupancy and supply, and incentivize affordable unit

17 construction. These grants require the grantee to prepare a statement of community development

18 objectives and projected use of funds, provide a citizen participation plan, and certify other

19 enumerated criteria. 42 U.S.C. § 5304.

20

86. No federal funds received by San Francisco have statutory conditions specifically

21 requiring compliance with Section 1373.

22

87. San Francisco receives most federal funds as reimbursements. Thus, San Francisco is

23 currently providing services and benefits that the Federal government has agreed to reimburse. The

24 Executive Order calls into question whether the Federal government will in fact reimburse San

25 Francisco for these funds. This presents San Francisco with a Hobson’s choice. San Francisco, facing

26 possible reductions, could cut services now, harming the public. Or San Francisco could continue to

27 spend knowing that if cuts come they could come suddenly, outside of the budget process, and the San

28

COMPLAINT: CCSF v. TRUMP

17

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 19 of 41

1 Francisco will have to impose service cuts even more radically at that time, given that funds have

2 already been spent in anticipation of federal reimbursement.

3

C. Budget Impact of the Executive Order

4

88. The Executive Order’s threat to cut federal funds impairs San Francisco’s internal

5 government operations by hampering its budget process. The threatened loss of federal funds renders

6 San Francisco unable to prepare a balanced budget for the next fiscal year.

7

89. San Francisco has already begun the seven-month process of adopting the annual

8 budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the

9 Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco

10 departments with detailed guidance on the preparation of departments’ budget requests. Public

11 hearings have begun to consider departmental budget proposals. Most San Francisco departments must

12 submit their budget requests for the coming fiscal year to the Controller by February 21. The

13 Controller must submit a consolidated budget proposal to the Mayor by March 1, the Mayor must

14 submit budget proposal to the Board of Supervisors by June 1, and the Board must approve a balanced

15 budget by August 1.

16

90. The Executive Order’s threat to cut federal funds is manifestly coercive. This is why at

17 least one jurisdiction has already changed its policy about immigration detainers in response to the

18 Executive Order. The day after the Executive Order was issued, Miami-Dade County Mayor Carlos

19 Gimenez instructed the county’s interim corrections director to “fully cooperate” with the Federal

20 government and comply with all immigration detainer requests, eliminating a previous federal

21 reimbursement requirement. “It’s really not worth the risk of losing millions of dollars to the residents

22 of Miami-Dade County in discretionary money from the feds,” said Mayor Gimenez. Ray Sanchez,

23 Trump’s Sanctuary Crackdown, CNN Politics (Jan. 27, 2017, 6:34 PM ET),

24 http://www.cnn.com/2017/01/27/politics/miami-dade-mayor-sanctuary-crackdown/. There is little

25 doubt that is exactly what the President intends in his promise to end sanctuary cities.

26

D. Community Relations Impact of the Executive Order

27

91. The Executive Order fosters an atmosphere of fear and distrust between undocumented

28 immigrants and local government officials in San Francisco.

COMPLAINT: CCSF v. TRUMP

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 20 of 41

1

92. By heightening undocumented immigrants’ concerns that any interaction with San

2 Francisco officials will lead to their information being turned over to ICE, the Executive Order

3 discourages undocumented immigrants from reporting crimes, seeking public health services, and

4 otherwise engaging with San Francisco programs and services. This threat harms public safety, public

5 health, and San Francisco’s ability to act in what San Francisco has determined to be the best interest

6 of its residents, consistent with federal and state law.

7

93. The Executive Order undermines San Francisco’s ability to provide critical services not

8 just to undocumented immigrants, but to all residents. When witnesses and crime victims will not talk

9 to the police, law enforcement suffers and the entire community is less safe. When children are not

10 vaccinated or the sick are not treated for communicable diseases, illness spreads throughout the

11 community. The United States Constitution guarantees states and local governments, such as San

12 Francisco, that they may make those decisions and do not have to carry out the Federal government’s

13 immigration programs.

14

94. San Francisco has been forced to expend its tax dollars educating San Francisco

15 officials and reassuring residents in response to the Executive Order.

16

95. As a result, the Executive Order causes the very harms San Francisco’s Sanctuary City

17 laws were designed to prevent. The Executive Order destroys rather than “foster[s] respect and trust

18 between law enforcement and residents,” wastes rather than “protect[s] limited local resources,” and

19 discourages rather than “encourage[s] cooperation between residents and City officials, including

20 especially law enforcement and public health officers and employees.” San Francisco Administrative

21 Code Ch. 12I.1.

22

CAUSES OF ACTION

23

COUNT ONE

DECLARATORY RELIEF – SAN FRANCISCO COMPLIES WITH 8 U.S.C. § 1373 24

25

96. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

26 if fully set forth herein.

27

97. San Francisco contends that it complies with Section 1373. San Francisco

28 Administrative Code Chapters 12H and 12I do not prohibit, or in any way restrict, any government

COMPLAINT: CCSF v. TRUMP

19

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 21 of 41

1 entity or official from sending to, or receiving from, the Immigration and Naturalization Service

2 information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

3

98. Defendants contend that San Francisco does not comply with Section 1373.

4

99. An actual controversy presently exists between San Francisco and Defendants about

5 whether San Francisco complies with Section 1373.

6

100. A judicial determination resolving this controversy is necessary and appropriate at this

7 time. 8 9

COUNT TWO TENTH AMENDMENT – 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL

10

101. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

11 if fully set forth herein.

12

102. On its face, Section 1373 commandeers state and local governments in violation of the

13 Tenth Amendment to the Constitution by, inter alia, regulating the “States in their sovereign

14 capacity,” Reno, 528 U.S. at 151, limiting state authority to regulate internal affairs and determine the

15 duties and responsibilities of state employees, Gregory, 501 U.S. at 460, and ultimately forcing States

16 to allow their employees to use state time and state resources to assist in the enforcement of federal

17 statutes regulating private individuals, Reno, 528 U.S. at 151, and to provide information that belongs

18 to the State and is available to them only in their official capacity, Printz, 521 U.S. at 932-33 & n.17.

19

103. As applied to invalidate state and local Sanctuary City laws, like San Francisco

20 Administrative Code Chapters 12H and 12I, which were enacted to further legitimate local interests

21 grounded in the basic police powers of local government and related to public health and safety,

22 Section 1373(a) commandeers state and local governments and violates the Tenth Amendment to the

23 United States Constitution.

24

COUNT THREE

25

TENTH AMENDMENT – EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT DIRECTIVE IS UNCONSTITUTIONAL

26

27

104. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

28 if fully set forth herein.

COMPLAINT: CCSF v. TRUMP

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 22 of 41

1

105. Executive Order Section 9(a) contains an Enforcement Directive stating: “The Attorney

2 General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

3 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

4 law.” Executive Order, at 8801.

5

106. The Federal government has taken the position that a state or local jurisdiction that fails

6 to affirmatively assist federal immigration officials—by, for example, refusing to comply with a

7 detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations—hinders the

8 enforcement of federal law and violates Section 1373.

9

107. Accordingly, the Enforcement Directive commandeers state and local governments,

10 violating Tenth Amendment to the United States Constitution by, inter alia, compelling them to

11 enforce a federal program by imprisoning individuals subject to removal at the request of the Federal

12 government when those individuals would otherwise be released from custody.

13

PRAYER FOR RELIEF

14

Wherefore, San Francisco prays that the Court grant the following relief:

15

1. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face;

16

2. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for

17

receiving federal funds;

18

3. Declare that Section 1373(a) is invalid as applied to state and local Sanctuary City laws,

19

like San Francisco Administrative Code Chapters 12H and 12I, which were enacted for

20

legitimate local purposes related to public health and safety;

21

4. Enjoin Defendants from enforcing Section 1373(a) against jurisdictions that enact

22

Sanctuary City laws for legitimate local purposes;

23

5. Declare that San Francisco complies with Section 1373;

24

6. Enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply

25

with Section 1373;

26

7. Enjoin unconstitutional applications of the Enforcement Directive in Executive Order

27

Section 9(a);

28

8. Award San Francisco reasonable costs and attorney’s fees; and

COMPLAINT: CCSF v. TRUMP

21

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 23 of 41

1

9. Grant any other further relief that the Court deems fit and proper.

2

3 Dated: January 31, 2017

4

DENNIS J. HERRERA

5

City Attorney RONALD FLYNN

6

JESSE C. SMITH YVONNE R. MERÉ

7

MOLLIE M. LEE SARA J. EISENBERG

8

Deputy City Attorneys

9 By: /s/ Dennis J. Herrera

10

DENNIS J. HERRERA

City Attorney

11

12

By: /s/ Mollie M. Lee

MOLLIE M. LEE

13

Deputy City Attorney

14

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO 15

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COMPLAINT: CCSF v. TRUMP

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 24 of 41

1

FILER’S ATTESTATION

2

I, Mollie M. Lee, am the ECF user whose identification and password are being used to file

3 this COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. Pursuant to Civil Local

4 Rule 5-1(i)(3), I hereby attest that the other above-named signatories concur in this filing.

5

6

7

8

9

10

11

12

13

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15

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COMPLAINT: CCSF v. TRUMP

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 25 of 41
EXHIBIT 1

CHAPTER 12H: IMMIGRATION STATUS

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 26 of 41

San Francisco Administrative Code

CHAPTER 12H: IMMIGRATION STATUS

Page 1 of 2

Sec. 12H.1. Sec. 12H.2. Sec. 12H.3. Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

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CHAPTER 12H: IMMIGRATION STATUS

Page 2 of 2

(Added by Ord. 3C75a-s89e, A4p:p1.710-/c2v4/-809;0a4m8en5d-eDd bMy ROrd. D22o8-c0u9,mFielenNto1. 091F03il2e, dAp0p.11/03-218/-120709; POrad.g9e6-1267, Foilfe4N1o. 160022, App.

6/17/2016, Eff. 7/17/2016)

SEC. 12H.2-1. [REPEALED.]

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.

The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)

SEC. 12H.4. ENFORCEMENT.

The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 28 of 41
EXHIBIT 2

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 29 of 41

San Francisco Administrative Code

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

Page 1 of 7

Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.

The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.

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Given that civiCl aimsemi4g:r1a7ti-ocnv-d0e0ta4in8e5r-sDaMreRissuDeodcbuymimenmti1gratFioilnedof0fi1c/e3r1s /w17ithoPuat gjuedi3c0ialoof v4e1rsight, and the

regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance,

there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by

probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil

immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE

"Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the

Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in

custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that

detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See

alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *10-

12 (N.D. Ill. filed May 5, 2014).)

On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require state or local law enforcement officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.

According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.

The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.

In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.

First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions

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about local law eCnafosrece4m:1e7n-t'csvl-i0ab0i4li8ty5-fDorMcRonstDituotciounmael vnito1latiFonilsedif 0an1y/3p1e/r1s7on iPsaogveer3d1etaoifn4ed1 when

immigration agents are unable to be present at the time of the person's release from local custody.

Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.

The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.

The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.

In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.2. DEFINITIONS.

"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed. (b) The individual has been acquitted of all criminal charges filed against him or her. (c) The individual has served all the time required for his or her sentence. (d) The individual has posted a bond, or has been released on his or her own recognizance. (e) The individual has been referred to pre-trial diversion services.

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CHAPTER 12I: CIVIL IMMIGRATION DETAINERS (f) The indiviCduaasleis4o:1th7e-rcwvi-s0e0e4l8ig5ib-DleMfoRr reDleoacseumunednetr 1statFeiolerdlo0c1a/l3la1w/1.7 Page 32 of 41

Page 4 of 7

"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.

"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.

"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.

"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.

"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.

"Personal information" means any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information.

"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).

"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.

(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and

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(2) A magisCtraasteeh4a:s1d7e-tcevr-m0i0n4e8d5th-DatMthRereDisopcruombaebnlet 1cauFseiletodb0e1li/e3v1e/1th7e inPdaivgiedu3a3l iosfg4u1ilty of a Violent

Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.

(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.

(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:

(1) The individual either:

(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or

(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or

(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and

(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a) (3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

(e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.

(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.4. PURPOSE OF THIS CHAPTER.
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Page 6 of 7

The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary notification of release of individuals, transmission of personal information, and civil immigration documents based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.5. SEMIANNUAL REPORT.

By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.6. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
CODIFICATION NOTE
1. So in Ord. 204-13.

SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

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In enacting andCiamspele4m:1e7n-tcinvg-0th0i4s8C5h-DapMteRr 12DI othceuCmiteynits1assFumileidng0a1n/3u1n/d1e7rtakPianggeon3l5y toof p4r1omote the

general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of

which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.8.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.10.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.11.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

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EXHIBIT 3

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 37 of 41
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Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens. Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
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Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as ‘‘Secure Communities’’ referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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8802

Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 40 of 41
Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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Case 4:17-cv-00485-DMR Document 1 Filed 01/31/17 Page 41 of 41
Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents

8803

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017–02102 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 25, 2017.

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JS-CAND 44 (Rev. 07/16) Case 4:17-cv-00485-DMCRIVIDLocCumOeVnEt 1R-1SHFEileEdT01/31/17 Page 1 of 2
The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

CITY AND COUNTY OF SAN FRANCISCO,

DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States Department of Homeland Security, DANA J. BOENTE, Acting Attorney General of the United States, DOES 1-100

(b) County of Residence of First Listed Plaintiff San Francisco County
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number)
Dennis J. Herrera, City Attorney, State Bar #139669 Mollie M. Lee, Deputy City Attorney, State Bar #251404 San Francisco City Attorney's Office 1 Dr. Carlton B. Goodlett Place, City Hall, Rm. 234 San Francisco, California 94102 Telephone No. 415.554.4748

County of Residence of First Listed Defendant Washington County
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

of Business In This State

4

4

2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

Citizen or Subject of a Foreign Country

3

3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
Of Veteran’s Benefits 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability
320 Assault, Libel & Slander
330 Federal Employers’ Liability
340 Marine
345 Marine Product Liability
350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal Injury -
Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations
445 Amer. w/Disabilities– Employment
446 Amer. w/Disabilities– Other
448 Education

PERSONAL INJURY 365 Personal Injury –
Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee– Conditions of Confinement

625 Drug Related Seizure of Property 21 USC § 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

422 Appeal 28 USC § 158 423 Withdrawal
28 USC § 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS–Third Party
26 USC § 7609

V. ORIGIN (Place an “X” in One Box Only)

1 Original

2 Removed from

Proceeding

State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5 Transferred from Another District (specify)

6 Multidistrict Litigation–Transfer

6

6

OTHER STATUTES
375 False Claims Act 376 Qui Tam (31 USC
§ 3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision
950 Constitutionality of State Statutes

8 Multidistrict Litigation–Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Tenth Amendment, U.S. Const. amend. X; 28 U.S.C. Sections 2201 and 2202 et seq.
VI. CAUSE OF ACTION Brief description of cause:
Declaration that San Francisco complies with federal law; challenge to constitutionality of Presidential Executive Order and related federal law.

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, Fed. R. Civ. P.

VIII. RELATED CASE(S),

IF ANY (See instructions):

JUDGE

IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes

No

DOCKET NUMBER

(Place an “X” in One Box Only)

SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE

DATE: 01/31/2017

SIGNATURE OF ATTORNEY OF RECORD: /s/ Mollie M. Lee

JS-CAND 44 (rev. 07/16) Case 4:17-cv-00485-DMR Document 1-1 Filed 01/31/17 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44
Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)
c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).”
II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.
(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.
(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an “X” in one of the six boxes.
(1) Original Proceedings. Cases originating in the United States district courts.
(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box.
(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.
(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above.
(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.
Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”
Date and Attorney Signature. Date and sign the civil cover sheet.

 
 Case 3:17-cv-00485-WHO Document 11 Filed 02/07/17 Page 1 of 3

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - #271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - #251471
4 DANIELLE L. GOLDSTEIN - #257486 KAVITA NARAYAN - #264191
5 JAVIER SERRANO - #252266 JULIA B. SPIEGEL - #292469
6 ADRIANA L. BENEDICT - #306936 70 West Hedding Street
7 East Wing, Ninth Floor San Jose CA 95110-1770
8 Telephone: 408 299 5900 Facsimile: 408 292 7240
9

KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 jkeker@kvn.com ROBERT A. VAN NEST - # 84065 rvannest@kvn.com DANIEL PURCELL - # 191424 dpurcell@kvn.com CODY S. HARRIS - # 255302 charris@kvn.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys for Non-Party COUNTY OF SANTA CLARA

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 CITY AND COUNTY OF SAN FRANCISCO,
15
Plaintiff, 16
v. 17
DONALD J. TRUMP, President of the 18 United States, UNITED STATES OF
AMERICA, JOHN F. KELLY, Secretary of 19 United States Department of Homeland
Security, DANA J. BOENTE, Acting 20 Attorney General of the United States,
DOES 1-100, 21
Defendants. 22

Case No. 3:17-CV-00485-WHO
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO N.D. CAL. CIVIL L.R. 3-12(B)
Date Filed: January 31, 2017
Trial Date:

23

24

25

26

27

28

1145002

ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 11 Filed 02/07/17 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1145002

I. INTRODUCTION Pursuant to Civil Local Rule 3-12(b), non-party County of Santa Clara (the “County”)
respectfully requests that the Court consider whether the actions City and County of S.F. v. Trump et al., Case No. 3:17-cv-00485-WHO (the “San Francisco Action”) and County of Santa Clara v. v. Trump et al., Case No. 5:17-cv-00574-LHK (the “Santa Clara County Action”) may be related.1 “An action is related to another when: (1) The actions concern substantially the same parties, property, transaction or event; and (2) it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges.” N.D. Cal. Civ. L.R. 3-12(a).
II. DISCUSSION The San Francisco and the Santa Clara County Actions challenge the constitutionality of
President Donald J. Trump’s issuance of a January 25, 2017 executive order directing reprisals against state, local, and municipal governments deemed to be so-called “sanctuary jurisdictions,” Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”), albeit on different bases. The San Francisco Action focuses primarily on the constitutionality of 8 U.S.C. § 1373(a), an immigration statute referenced in the Executive Order, as well as San Francisco’s compliance with that statute. See San Francisco Action, Compl. ¶¶ 96–103. It also asserts a cause of action for declaratory and injunctive relief on the grounds that Section 9 of the Executive Order violates the Tenth Amendment to the United States Constitution. Id. ¶¶ 104–07.
In the Santa Clara County Action, the County asserts four causes of action seeking declaratory and injunctive relief on the grounds that the Executive Order violates the Fifth Amendment’s Due Process Clause, the inherent separation of powers set forth in the United States Constitution, and also states a claim for violation of the Tenth Amendment. See Santa Clara County Action, Compl. ¶¶ 118–54.
Both cases name as defendants President Trump, U.S. Department of Homeland Security Secretary John F. Kelly, and Acting Attorney General Dana J. Boente. The Santa Clara County
1 The complaints in the San Francisco and Santa Clara County Actions are attached as Exhibits A & B, respectively, to the Declaration of Cody S. Harris filed herewith.
1
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 11 Filed 02/07/17 Page 3 of 3

1 Action also names as a defendant Acting Director of the Office of Management and Budget Mark

2 Sandy.

3

Given the overlap in parties, factual and legal issues involved, and the relief sought in

4 both Actions, it is possible that conducting the actions in two courts simultaneously may lead to

5 unnecessary duplication of effort and the potential for conflicting results.

6 III. CONCLUSION

7

For the foregoing reasons, the County respectfully requests that the Court consider

8 whether the San Francisco and Santa Clara County Actions are related under Local Rule 3-12.

9

10 Dated: February 7, 2017 11 12 13 14 15 16 17

KEKER & VAN NEST LLP
By: /s/ Cody S. Harris JOHN W. KEKER ROBERT A. VAN NEST DANIEL PURCELL CODY S. HARRIS NICHOLAS S. GOLDBERG
Attorneys for Non-Party COUNTY OF SANTA CLARA

18

19

20

21

22

23

24

25

26

27

28

1145002

2
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 11-1 Filed 02/07/17 Page 1 of 2

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - #271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - #251471
4 DANIELLE L. GOLDSTEIN - #257486 KAVITA NARAYAN - #264191
5 JAVIER SERRANO - #252266 JULIA B. SPIEGEL - #292469
6 ADRIANA L. BENEDICT - #306936 70 West Hedding Street
7 East Wing, Ninth Floor San Jose CA 95110-1770
8 Telephone: 408 299 5900 Facsimile: 408 292 7240
9

KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 jkeker@kvn.com ROBERT A. VAN NEST - # 84065 rvannest@kvn.com DANIEL PURCELL - # 191424 dpurcell@kvn.com CODY S. HARRIS - # 255302 charris@kvn.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys for Non-Party COUNTY OF SANTA CLARA

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 CITY AND COUNTY OF SAN FRANCISCO,
15
Plaintiff, 16
v. 17
DONALD J. TRUMP, President of the 18 United States, UNITED STATES OF
AMERICA, JOHN F. KELLY, Secretary of 19 United States Department of Homeland
Security, DANA J. BOENTE, Acting 20 Attorney General of the United States,
DOES 1-100, 21
Defendants. 22

Case No. 3:17-CV-00485-WHO
DECLARATION OF CODY S. HARRIS IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
Date Filed: January 31, 2017
Trial Date:

23

24

25

26

27

28

1145005

DECLARATION OF CODY S. HARRIS IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
Case No. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 11-1 Filed 02/07/17 Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1145005

I, Cody S. Harris, declare and state as follows: 1. I am an attorney licensed to practice law in the State of California and a member
of the Law Firm of Keker & Van Nest LLP, counsel for the County of Santa Clara (the “County”), sole plaintiff in the action County of Santa Clara v. v. Trump et al., Case No. 5:17cv-00574-LHK (the “Santa Clara County Action”) filed in this District on February 3, 2017. I have personal knowledge of the facts stated herein and, if called as a witness, I would testify competently thereto.
2. I file this Declaration in support of the County’s Administrative Motion to Consider Whether Cases Should Be Related (the “Administrative Motion”).
3. The Defendants in the Santa Clara County Action have only recently been served and have not yet appeared in that case. Accordingly, the County was unable to obtain a stipulation regarding the relief requested in the Administrative Motion pursuant to Civil Local Rule 7-12.
4. Attached hereto as Exhibit A is a true and correct copy of the complaint in this action, City and County of S.F. v. Trump et al., Case No. 3:17-cv-00485-WHO (the “San Francisco Action”).
5. Attached hereto as Exhibit B is a true and correct copy of the complaint filed in the Santa Clara County Action.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was executed on February 7, 2017 at San Francisco, California.
/s/ Cody Harris CODY S. HARRIS
1
DECLARATION OF CODY S. HARRIS IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
Case No. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 11-2 Filed 02/07/17 Page 1 of 44
EXHIBIT A

CaCsaese3:31:71-7c-vc-v0-00408458-5W-WHOHO DoDcoucmumenetn1t 11-2 FiFleilded010/23/10/71/717 PaPgaege1 2ofo4f 144

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

6 Deputy City Attorneys

City Hall, Room 234

7 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

8 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

9 E-Mail:

brittany.feitelberg@sfgov.org

10 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
11

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 CITY AND COUNTY OF SAN

Case No.

FRANCISCO,

16

Plaintiff,

17

vs.

COMPLAINT FOR DECLARATORY AND

18

INJUNCTIVE RELIEF

DONALD J. TRUMP, President of the United

19 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of United States

20 Department of Homeland Security, DANA J.

BOENTE, Acting Attorney General of the

21 United States, DOES 1-100,

22

Defendants.

23

24

25

26

27

28

COMPLAINT: CCSF v. TRUMP

CaCsaese3:31:71-7c-vc-v0-00408458-5W-WHOHO DoDcoucmumenetn1t 11-2 FiFleilded010/23/10/71/717 PaPgaege2 3ofo4f 144

1

INTRODUCTION

2

1. The City and County of San Francisco (“San Francisco”) seeks declaratory and

3 injunctive relief against the United States of America and the above-named federal officials for

4 violating the Tenth Amendment, U.S. Const. amend. X. San Francisco further seeks a declaration that

5 it complies with Title 8, Section 1373 of the United States Code (“Section 1373”) under the

6 Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et seq.

7

2. In blatant disregard of the law, the President of the United States seeks to coerce local

8 authorities into abandoning what are known as “Sanctuary City” laws and policies. To accomplish this

9 objective, on January 25, 2017, the President issued an Executive Order entitled, “Enhancing Public

10 Safety in the Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)

11 (“Executive Order”). The Executive Order announces that it is the Executive Branch’s policy to

12 withhold federal funds from “sanctuary jurisdictions,” and directs the Attorney General and Secretary

13 of Homeland Security to ensure that sanctuary jurisdictions do not receive Federal grants, and directs

14 the Attorney General to take enforcement action against any local entity that “hinders the enforcement

15 of Federal law.” This strikes at the heart of established principles of federalism and violates the United

16 States Constitution.

17

3. The President and San Francisco agree that San Francisco is a Sanctuary City, but

18 disagree about what that means. San Francisco laws limit when city employees and agencies may

19 assist with the enforcement of federal immigration law. These laws generally prohibit city employees

20 from using city funds or resources to assist in the enforcement of federal immigration law, unless

21 required by federal or state law. They specifically prohibit local law enforcement officers from

22 cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are

23 voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s

24 release from local jail.

25

4. Like many other cities, San Francisco is a city of immigrants, many of whom are

26 undocumented, who come here to live, work, and raise families. San Francisco is safer when all

27 people, including undocumented immigrants, feel safe reporting crimes. San Francisco is healthier

28 when all residents, including undocumented immigrants, access public health programs. And San

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1 Francisco is economically and socially stronger when all children, including undocumented

2 immigrants, attend school. Using city and county resources for federal immigration enforcement

3 breeds distrust of local government and officials who have no power to change federal laws, and can

4 also wrench apart family and community structures that support residents and thus conserve resources.

5 For these reasons, among others, San Francisco has directed its employees and officers not to assist the

6 Federal government in enforcing federal immigration law, with limited exceptions.

7

5. San Francisco faces the imminent loss of federal funds and impending enforcement

8 action if it does not capitulate to the President’s demand that it help enforce federal immigration law.

9 At least one jurisdiction has already succumbed to this presidential fiat.

10

6. The Executive Order relies on Title 8, Section 1373 of the United States Code (“Section

11 1373”), which provides that local governments may not prohibit or restrict any government entity or

12 official from “sending to, or receiving from, [federal immigration officials] information regarding the

13 citizenship or immigration status . . . of any individual.” San Francisco seeks declaratory relief that its

14 Sanctuary City laws comply with Section 1373. San Francisco does not prohibit or restrict its

15 employees from sharing information about the citizenship or immigration status of any individual with

16 federal immigration officials.

17

7. The Executive Order is a severe invasion of San Francisco’s sovereignty. The

18 Executive Order not only interferes with San Francisco’s ability to direct the official actions of its

19 officers and employees but also threatens new consequences for failing to comply with 1373. In this

20 action, San Francisco seeks declaratory relief that Section 1373 is unconstitutional on its face and as

21 applied to state and local Sanctuary City laws such as San Francisco’s. The Executive Branch may not

22 commandeer state and local officials to enforce federal law.

23

8. The Constitution establishes a balance of power between the state and Federal

24 governments, as well as among the coordinate branches of Federal government, to prevent the

25 excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from

26 any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated

27 to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

28

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1 respectively, or to the people.” This state sovereignty extends to political subdivisions of the State,

2 including cities and counties such as San Francisco.

3

9. This lawsuit is about state sovereignty and a local government’s autonomy to devote

4 resources to local priorities and to control the exercise of its own police powers, rather than being

5 forced to carry out the agenda of the Federal government. Under the Constitution and established

6 principles of federalism, state and local governments have this autonomy. The Executive Order

7 purports otherwise to wrest this autonomy from state and local governments, and a court order is

8 needed to resolve this controversy.

9

10. San Francisco recognizes that there will be additional developments related to the

10 Executive Order in the weeks and months to come. But the consequences threatened by the Executive

11 Order are too severe for San Francisco to wait. The Executive Order threatens the loss of more than $1

12 billion in federal funds that support vital services, the loss of community trust, and the loss of San

13 Francisco’s sovereign authority to set and follow its own laws on matters appropriately and

14 historically within the control of local government. San Francisco has no choice but to seek the

15 intervention of this Court to ensure that its rights and residents are protected, and that the

16 Administration complies with Federal law and the Constitution.

17

JURISDICTION AND VENUE

18

11. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

19 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

20 seq.

21

12. Venue properly lies within the Northern District of California because Plaintiff, City

22 and County of San Francisco, resides in this judicial district and a substantial part of the events or

23 omissions giving rise to this action occurred in this District. 28 U.S.C. §1391(e).

24

PARTIES

25

13. Plaintiff, City and County of San Francisco (“San Francisco”), is a municipal

26 corporation organized and existing under and by virtue of the laws of the State of California, and is a

27 charter city and county.

28

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1

14. Defendant Donald J. Trump is the President of the United States. He is sued in his

2 official capacity.

3

15. Defendant United States of America is sued under 28 U.S.C. Section 1346.

4

16. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the

5 United States Federal government with the primary mission of securing the United States. Defendant

6 John F. Kelly is the Secretary of DHS. Secretary Kelly is responsible for executing relevant provisions

7 of the Executive Order. Secretary Kelly is sued in his official capacity.

8

17. The Attorney General (“AG”) is a cabinet department of the United States Federal

9 government overseeing the Department of Justice. Defendant Dana J. Boente is the Acting Attorney

10 General. Acting Attorney General Boente is responsible for executing relevant provisions of the

11 Executive Order. Acting Attorney General Dana J. Boente is sued in his official capacity.1

12

18. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the

13 true names or capacities of said Defendants, who were responsible for the alleged violations alleged,

14 but pray that the same may be alleged in this complaint when ascertained.

15

FACTUAL ALLEGATIONS

16 I. SAN FRANCISCO’S SANCTUARY CITY LAWS

17

19. San Francisco is a Sanctuary City and has been since 1989. In the 1980s, thousands of

18 Central American refugees fled countries in the midst of violent civil wars to seek legal protection in

19 the United States. Against the backdrop of this humanitarian crisis, San Francisco began enacting the

20 ordinances that, as later amended, make up San Francisco’s Sanctuary City laws.

21

20. Numerous other municipalities—including New York, D.C., Chicago, Los Angeles,

22 New Orleans, Santa Clara, Minneapolis, and Houston—have also enacted Sanctuary City laws.

23 Although the details of their ordinances differ, all of these jurisdictions have adopted laws or policies

24 that limit using local resources to implement and enforce federal immigration laws.

25

21. Today, San Francisco’s body of Sanctuary City law is contained in two chapters of San

26 Francisco’s Administrative Code: Chapters 12H and 12I.

27 1 Jeff Sessions has been nominated to serve as Attorney General and will replace Acting
28 Attorney General Dana J. Boente, if confirmed.

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1

22. Importantly, these chapters do not protect criminals or prevent people from being

2 prosecuted for illegal acts. Instead, they protect children by ensuring that their parents feel safe taking

3 them to playgrounds, to schools, and to hospitals. They protect families from being split up when

4 parents of children born in the United States are deported. And they protect the safety and health of all

5 residents of San Francisco by helping to ensure that everyone, including undocumented immigrants,

6 feels safe reporting crimes, cooperating with police investigations, and seeking medical treatment.

7 Specifically, Chapters 12H and 12I apply as follows.

8

23. San Francisco Administrative Code Chapter 12H—the full text of which is attached as

9 Exhibit 1—prohibits San Francisco departments, agencies, commissions, officers, and employees from

10 using San Francisco funds or resources to assist in the enforcement of Federal immigration law or to

11 gather or disseminate information regarding the release status, or other confidential identifying

12 information, of an individual unless such assistance is required by Federal or state law.

13

24. San Francisco Administrative Code Chapter 12I—the full text of which is attached as

14 Exhibit 2—prohibits San Francisco law enforcement officials from detaining an individual who is

15 otherwise eligible for release from custody on the basis of a civil immigration detainer request issued

16 by the Federal government.

17

25. Section 287.7 of Title 8 of the Code of Federal Regulations provides that such a

18 detainer “serves to advise another law enforcement agency that the Department seeks custody of an

19 alien presently in the custody of that agency, for the purpose of arresting and removing the alien.”

20 Subsection (d) provides that “[u]pon a determination by the Department to issue a detainer for an alien

21 not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien

22 for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit

23 assumption of custody by the Department.”

24

26. A detainer request issued under this section is distinct from a criminal warrant, which

25 San Francisco honors consistent with its Sanctuary City laws. A detainer request is not issued by a

26 judge and is not based on a finding of probable cause. It is simply a request by ICE that a state or local

27 law enforcement agency hold individuals after their release date to provide ICE agents extra time to

28 decide whether to take those individuals into federal custody and then deport them.

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1

27. Complying with such a detainer request requires committing scarce law enforcement

2 personnel and resources to track and respond to requests, detain individuals in holding cells, and

3 supervise and feed individuals during the prolonged detention. And the Federal government has made

4 clear that the local agency bears the financial burden of the detention, providing that “[n]o detainer

5 issued as a result of a determination made under this chapter . . . shall incur any fiscal obligation on the

6 part of the Department.” 8 C.F.R. 287(e).

7

28. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

8 a federal immigration officer’s request for advance notification of the date and time an individual in

9 San Francisco’s custody is being released, unless the in question meets certain criteria. See Section

10 12I.3(c), (d).

11

29. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall

12 not arrest or detain an individual, or provide any individual’s personal information to a federal

13 immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil

14 immigration document based solely on alleged violations of the civil provisions of immigration laws.”

15 See Section 12I.3(e). “Personal information” is defined as “any confidential, identifying information

16 about an individual, including, but not limited to, home or work contact information, and family or

17 emergency contact information.” See Section 12I.2.

18

30. The legislative findings set forth in Chapter 12I evidence the legitimate local purpose of

19 San Francisco’s Sanctuary City laws. For example, the Legislature declared:

20

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

21

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

22

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

23

cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure

24

community security, and due process for all. (See Section 12I.2.)

25

31. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to

26 federal civil immigration detainers, notification of release of individuals, transmission of personal

27 information, or civil immigration documents, based solely on alleged violations of the civil provisions

28 of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement

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1 agencies may continue to collaborate with federal authorities to protect public safety.” See Section

2 12I.4.

3

32. Further underscoring that San Francisco’s Sanctuary City laws arise from San

4 Francisco’s commitment and responsibility to ensure public safety and welfare, the Board of

5 Supervisors, as San Francisco’s legislative body, found that public safety is “founded on trust and

6 cooperation of community residents and local law enforcement.” Section 12I.1. Citing a study by the

7 University of Illinois, which found that at least 40% of Latinos surveyed were less likely to provide

8 information to police because they feared exposing themselves, family, or friends to a risk of

9 deportation, the Legislature stated that “civil immigration detainers and notifications regarding release

10 undermine community trust of law enforcement by instilling fear in immigrant communities of coming

11 forward to report crimes and cooperate with local law enforcement agencies.” Id.; see also id. (“The

12 City has enacted numerous laws and policies to strengthen communities and to build trust between

13 communities and local law enforcement. Local cooperation and assistance with civil immigration

14 enforcement undermines community policing strategies.”).

15

33. The Board of Supervisors also had a public health purpose for its decision to restrict

16 disclosure of confidential information: “To carry out public health programs, the City must be able to

17 reliably collect confidential information from all residents . . . . Information gathering and cooperation

18 may be jeopardized if release of personal information results in a person being taken into immigration

19 custody.” Id.

20

34. Finally, the Board of Supervisors determined that enforcing immigration detainer

21 requests would require San Francisco to redirect scarce local law enforcement personnel and

22 resources—noting that the costs of “responding to a civil immigration detainer can include, but [are]

23 not limited to, extended detention time, the administrative costs of tracking and responding to

24 detainers, and the legal liability for erroneously holding an individual who is not subject to a civil

25 immigration detainer.” Id. In short, the Board of Supervisors concluded that “[c]ompliance with civil

26 immigration detainers and involvement in civil immigration enforcement diverts limited local

27 resources from programs that are beneficial to the City.” Id.

28

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1

35. San Francisco departments have adopted policies and practices consistent with

2 Chapters 12H and 12I.

3

36. California law incorporates local Sanctuary City laws such as Chapters 12H and 12I.

4 The TRUST Act states that that local law enforcement officials may comply with ICE detainer

5 requests only if (1) the continued detention would not violate any federal, state, or local law, or any

6 local policy, and (2) the defendant’s criminal history meets specified conditions. Cal. Gov’t Code

7 §§ 7282, 7282.5. Thus, because in San Francisco ICE detentions are prohibited under local law, they

8 are also prohibited under state law.

9 II. SECTION 1373

10

37. Section 1373 provides that “a local government entity or official may not prohibit, or in

11 any way restrict, any government entity or official from sending to, or receiving from, [federal

12 immigration officials] information regarding the citizenship or immigration status . . . of any

13 individual.” 8 U.S.C. § 1373(a). This restriction exclusively regulates government entities.

14

38. Section 1373 requires San Francisco to allow its employees to use city resources,

15 including San Francisco tax dollars, to respond to requests for information about citizenship and

16 immigration status.

17

39. On May 31, 2016, in response to a request from the Office of the Attorney General, the

18 Office of the Inspector General (“OIG”) of the Department of Justice issued a memorandum (“OIG

19 Memo”) regarding potential violations of Section 1373 by recipients of funding from the Edward

20 Byrne Memorial Justice Assistance Grant Program (“JAG”). Memorandum from Michael E.

21 Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs,

22 “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant

23 Recipients” (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.2

24

40. In analyzing the local laws and policies of ten selected state and local jurisdictions, the

25 OIG demonstrated how the Federal government interprets Section 1373.

26 2 The authorizing legislation for the JAG program requires that all grant applicants certify
27 compliance with the provisions of the authorizing legislation and all other “applicable federal laws.” 42 U.S.C. § 3750 et seq. The U.S. Department of Justice, Office of Justice Programs has recently
28 announced that Section 1373 is an “applicable” law under the JAG authorizing legislation.

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1

41. For example, though Section 1373 does not expressly address immigration detainers,

2 OIG expressed concern that local laws concerning the handling of detainer requests “may have a

3 broader practical impact on the level of cooperation afforded to ICE by these jurisdictions and may,

4 therefore, be inconsistent with at least the intent of Section 1373.” OIG Memo at 7. It went on to state

5 that local laws and policies that “purport to be focused on civil immigration detainer requests [and say

6 nothing about sharing immigration status with ICE] . . . may nevertheless be affecting ICE’s

7 interactions with the local officials regarding ICE immigration status requests.” Id.

8

42. OIG also stated that such immigration detainer request policies “may be causing local

9 officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE

10 in all respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id.

11 at 8.

12

43. In the OIG Memo, the Federal government also endorses the view that local

13 jurisdictions hinder the enforcement of Federal immigration law if they do not honor detainer requests

14 or if they place any other limitations on cooperation with ICE. See, e.g., id. at 4 (stating that even

15 though Section 1373 does not specifically address restrictions by state or local entities on cooperation

16 with ICE regarding detainers, “[a] primary and frequently cited indicator of limitations placed on

17 cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction

18 handles immigration detainer requests issued by ICE”).

19

44. In the OIG Memo, OIG recommended that the U.S. Department of Justice, Office of

20 Justice Programs (“OJP”) provide JAG recipients clear guidance on their obligation to comply with

21 Section 1373 and require them to certify that they comply with that section. See id. at 9.

22

45. In response to these recommendations, in July and October 2016 OJP issued guidance

23 regarding compliance with Section 1373. See Office of Justice Programs, Guidance Regarding

24 Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just. (July 7, 2016) (“OJP July Guidance”); Office of

25 Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just.

26 (October 6, 2016) (“OJP October Guidance”).

27

46. In the OJP July Guidance, OJP stated that to comply with Section 1373, “[y]our

28 personnel must be informed that notwithstanding any state or local policies to the contrary, federal law

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1 does not allow any government entity or official to prohibit the sending or receiving of information

2 about an individual’s citizenship or immigration status with any federal, state or local government

3 entity and officials.” OJP July Guidance at 1 (emphasis added). Accordingly, OJP reads into the law

4 an affirmative obligation to instruct personnel regarding the substance of Section 1373.

5

47. In the October 2016 Guidance, OIG stated that all JAG applicants must comply with—

6 and certify their compliance with—Section 1373. OJP October Guidance at 1.

7

48. As a subgrantee of a JAG grant, San Francisco is required to certify its compliance with

8 Section 1373.

9 III. SAN FRANCISCO COMPLIES WITH SECTION 1373

10

49. San Francisco complies with Section 1373.

11

50. The plain language of Section 1373 states that “a local government entity or official

12 may not prohibit, or in any way restrict, any government entity or official from sending to, or

13 receiving from, [federal immigration officials] information regarding the citizenship or immigration

14 status . . . of any individual.” 8 U.S.C. § 1373(a). Nothing in San Francisco Administrative Code

15 Chapters 12H or 12I limits communications regarding citizenship or immigration status in any way.

16

51. And, indeed, under ICE’s Secure Communities program (also known as “S-Comm”)

17 whenever an individual is taken into custody, the person is digitally fingerprinted and those

18 fingerprints are sent to the California Department of Justice and ultimately the FBI. The FBI forwards

19 the fingerprints to DHS, which allows ICE to determine the immigration status of everyone in San

20 Francisco custody.

21

52. Under Chapter 12I and the TRUST Act, San Francisco does not enforce detainer

22 requests (see ¶24, supra), and does not respond to notification requests from the Federal government

23 unless certain conditions are met (see ¶28, supra)—but compliance with such requests is not, in fact,

24 required by Section 1373, which speaks only to communications regarding citizenship and

25 immigration status. By contrast, San Francisco does comply with criminal warrants.

26

53. Also, complying with civil immigration detainer requests alone, in the absence of

27 probable cause for the detainer, would violate the Fourth Amendment to the United States Constitution

28 and could subject San Francisco to civil liability for this harm. See Arizona v. United States, 132 S. Ct.

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1 2492, 2509 (2012) (noting that “[d]etaining individuals solely to verify their immigration status would

2 raise constitutional concerns”); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); see also

3 Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to

4 immigration arrests).

5

54. San Francisco has affirmatively instructed personnel regarding the substance of Section

6 1373. For example, in a recent memorandum to all San Francisco employees, the San Francisco

7 Human Resources Director explained: “Although federal law states that a ‘local government entity or

8 official may not prohibit, or in any way restrict, any government entity or official from sending to, or

9 receiving from, the Immigration and Naturalization Service information regarding the citizenship or

10 immigration status, lawful or unlawful, of any individual’ (8 U.S.C. § 1373), Chapters 12H and 12I

11 impose other types of restrictions, which are consistent with federal law and are summarized below.”

12 IV. THE EXECUTIVE ORDER

13

55. On January 25, 2017, President Donald J. Trump issued the Executive Order attached

14 as Exhibit 3.3

15

56. The Executive Order declares that “Sanctuary jurisdictions across the United States

16 willfully violate Federal law in an attempt to shield aliens from removal from the United States. These

17 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

18 Republic.” Executive Order, at 8799.

19

57. To address the purported harm caused by Sanctuary Cities, the Executive Order

20 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not receive

21 Federal funds, except as mandated by law.” Id.

22

23 3 On January 27, 2017, President Trump issued a second Executive Order relating to
24 immigration issues entitled, “Protecting The Nation From Foreign Terrorist Entry Into The United States.” The January 27, 2017 Executive Order barred individuals from certain countries from entering
25 the United States. Since its issuance, five courts have issued orders granting temporary relief against the January 27, 2017 Executive Order. See Darweesh v. Trump, United States District Court, Eastern
26 District of New York, Case No. 17 Civ. 480; Tootkaboni v. Trump, United States District Court, District of Massachusetts, Case No. 17-cv-10154; Aziz v. Trump, United States District Court, Eastern
27 District of Virginia, Case No. 1:17-cv-116; Doe v. Trump, United States District Court, Western District of Washington, Case No. 17-cv-00126; Vayeghan v. Trump, United States District Court,
28 Central District of California, Case No. CV 17-0702.

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1

58. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

2 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a

3 State, shall comply with 8 U.S.C. 1373.” Id. at 8801.

4

59. The Executive Order establishes a funding restriction:

5

In furtherance of this policy, the Attorney General and the Secretary, in their discretion

6

and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

7

Federal grants, except as deemed necessary for law enforcement purposes by the

Attorney General or the Secretary. The Secretary has the authority to designate, in his

8

discretion and to the extent consistent with law, a jurisdiction as a sanctuary

jurisdiction. 9

10 Id. (the “Funding Restriction”).

11

60. The Funding Restriction imposes new funding conditions on existing federal funds that

12 go beyond the statutory conditions imposed by Congress.

13

61. Also, the Funding Restriction imposes funding conditions that are not germane to the

14 purpose of the funds insofar as it reaches funds that are unrelated to law enforcement or immigration.

15

62. The Funding Restriction also imposes conditions so severe that they cross the line

16 distinguishing encouragement from coercion. The Funding Restriction threatens a significant percent

17 of San Francisco’s overall budget, including virtually the entire funding stream for critical programs to

18 its residents, such as Medicaid.

19

63. Finally, the Funding Restriction imposes new funding conditions that require

20 jurisdictions to act unconstitutionally insofar as Defendants interpret Section 1373 to require San

21 Francisco to detain individuals who would otherwise be released from custody. Such detentions would

22 violate, inter alia, the Fourth Amendment.

23

64. For all these reasons, the Funding Restriction violates the Tenth Amendment, the

24 Spending Clause, and Article 1, sec. 1 of the United States Constitution.

25

65. The Executive Order also mandates enforcement action:

26

The Attorney General shall take appropriate enforcement action against any entity that

violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents

27

or hinders the enforcement of Federal law.

28 Id. (the “Enforcement Directive”).

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1

66. The Enforcement Directive commandeers state and local governments by, inter alia,

2 compelling them to enforce federal law under threat of legal action, violating Tenth Amendment to the

3 United States Constitution.

4 V. 5

DEFENDANTS CHARACTERIZE SAN FRANCISCO AS A SANCTUARY CITY THAT WILL LOSE FEDERAL FUNDING

6

67. In the Executive Order, Defendants equate Sanctuary Cities with jurisdictions that fail

7 to comply with Section 1373.

8

68. Defendants characterize San Francisco as a Sanctuary City.

9

69. For example, in a written campaign speech then-candidate Donald J. Trump gave in

10 Phoenix, Arizona on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City. See

11 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

12 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration (“Another

13 victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant

14 deported five previous times.”).

15

70. Not only have Defendants made clear that they consider San Francisco a Sanctuary

16 City, but they have also repeatedly indicated that Sanctuary Cities, like San Francisco, violate federal

17 law and should have their federal funding revoked.

18

• In statements to the Daily Caller on July 7, 2015, Congressman Darrell Issa and

19

Attorney General nominee Senator Jeff Sessions criticized San Francisco and other

20

sanctuary jurisdictions for failing to honor detainers. Attorney General nominee

21

Senator Jeff Sessions stated, “This disregarding of detainers and releasing persons

22

that ICE has put a hold on — it goes against all traditions of law enforcement. Laws

23

and courtesies within departments — if you have somebody charged with a crime in

24

one city, you hold them until you complete your business with them . . . . So what

25

was happening was, ICE authorities were filing detainers and sanctuary cities were

26

saying, ‘We’re not gonna honor them. They finished paying for the crime they

27

committed in our city — we’ve released them.’” Kerry Picket, Sen. Sessions: City

28

Officials Harboring Illegal Immigrant Felons Could Be Charged with Crime, Daily

COMPLAINT: CCSF v. TRUMP

13

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1

Caller (July 7, 2015, 10:07 PM), http://dailycaller.com/2015/07/07/sen-sessions-

2

city-officials-harboring-illegal-immigrant-felons-could-be-charged-with-

3

crime/#ixzz4XE9I12Ux.

4

• On July 8, 2015, Attorney General nominee Senator Jeff Sessions gave a speech to

5

Congress describing San Francisco as “a jurisdiction that is known to release illegal

6

immigrants back into the public,” and one which refused to “honor” a detainer

7

sought by federal authorities. News Release, Office of Senator Jeff Sessions,

8

Senator Sessions Calls on Congress To Take Up Immigration Reform for

9

Americans (July 9, 2015), http://www.sessions.senate.gov/public/index.cfm/news-

10

releases?ID=B7A98B63-8ECA-4A4E-B5C8-4A665F2343DE.

11

• In an interview with Breitbart News in May 2016, then-candidate Donald J. Trump

12

stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and

13

people that should not have a safe-haven in many cases. It’s just unacceptable.

14

We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive —

15

Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’

16

Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016),

17

http://www.breitbart.com/2016-presidential-race/2016/05/16/exclusive-donald-j-

18

trump-to-san-francisco-sanctuary-cities-unacceptable-a-disaster-creating-safe-

19

haven-for-criminals/. This Breitbart news report further stated that, “Trump’s

20

comments . . . come in response to efforts by far left progressive organizations in

21

San Francisco to expand that city’s sanctuary city laws.” Id.

22

• Another Breitbart News article published on November 21, 2016 regarding

23

Sanctuary Cities quoted Texas Republican Congressman John Culberson as stating,

24

“The law requires cooperation with immigration officials 100 percent of the time.”

25

Bob Price, Sanctuary Cities Risk Losing DOJ Funds in 2017, Texas Congressman

26

Says, Breitbart News (Nov. 21, 2016),

27

http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds-

28

2017-texas-congressman-says/.

COMPLAINT: CCSF v. TRUMP

14

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1

• In a statement by White House Press Secretary Sean Spicer on January 25, 2017

2

announcing the issuance of the Executive Order, Spicer stated, “We are going to

3

strip federal grant money from the sanctuary states and cities that harbor illegal

4

immigrants. The American people are no longer going to have to be forced to

5

subsidize this disregard for our laws.” White House, 1/25/17: White House Press

6

Briefing, YouTube (Jan. 25, 2017),

7

https://www.youtube.com/watch?v=OaPriMVvtZA.

8

71. In a speech at the GOP Congressional Republican Retreat in Philadelphia on January

9 26, 2017, President Trump reiterated his views on Sanctuary Cities: “And finally, at long last, cracking

10 down on Sanctuary Cities. It’s time to restore the civil rights of Americans to protect their jobs, their

11 hopes, and their dreams for a much better future. Congress passed these laws to serve our citizens. It

12 is about time those laws were properly enforced. They are not enforced.” See Donald J. Trump,

13 President Trump Remarks at Congressional Republican Retreat, C-Span (Jan 26, 2017),

14 https://www.c-span.org/video/?422829-1/president-trump-tells-congressional-republicans-now-

15 deliver.

16

72. A press release from the Office of the Press Secretary for the White House issued on

17 January 28, 2017 detailing President Trump’s First Week of Action, reads in relevant part: “President

18 Trump signed an executive order to ensure that immigration laws are enforced throughout the United

19 States, including halting federal funding for sanctuary cities.” Press Release, The White House, Office

20 of the Press Secretary, President Trump’s First Week of Action (Jan. 28, 2017),

21 https://www.whitehouse.gov/the-press-office/2017/01/28/president-trumps-first-week-action.

22

73. Defendants’ statements establish their view that Sanctuary Cities, like San Francisco,

23 violate Section 1373 and will lose federal funding—apparently all or almost all federal funding—

24 under the Executive Order.

25 VI. SECTION 1373 AND THE EXECUTIVE ORDER HARM SAN FRANCISCO

26

A. Section 1373(a) Impermissibly Intrudes on State Sovereignty

27

74. Section 1373(a) unconstitutionally regulates “States in their sovereign capacity.” Reno,

28 v. Condon, 528 U.S. 141, 151 (2000). It necessarily regulates governments in their capacities as

COMPLAINT: CCSF v. TRUMP

15

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1 governments. It does not “subject state governments to generally applicable laws.” New York v. U.S.,

2 505 U.S. 144, 160 (1992). On the contrary, in every possible application, it targets “government

3 entit[ies] or official[s]” for special treatment. 8 U.S.C. § 1373(a).

4

75. Congress may not command States to provide the Federal government with information

5 “that only state officials have access to,” Printz v. United States, 521 U.S. 898, 932 n.17 (1997). The

6 Federal government must not regulate its fellow governments in their capacities as governments.

7

76. Also, Section 1373 targets government entities’ and officials’ authority to control their

8 subordinates—an authority at the heart of a government’s existence as a government. “[A] State can

9 act only through its officers and agents.” Nevada v. Hicks, 533 U.S. 353, 365 (2001). “Through the

10 structure of its government, and the character of those who exercise government authority, a State

11 defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

12

77. By preventing state and local governments from directing employees how to handle

13 information about citizenship and immigration status, Section 1373 makes it impossible for local

14 jurisdictions freely to choose and clearly to establish how they will handle this information. Under

15 Section 1373, San Francisco cannot legislate or regulate that government officials and employees will

16 never share citizenship or immigration information. Yet Congress has no power “to require the States

17 to govern according to Congress’ instructions.” New York, 505 U.S. at 162 (emphasis added).

18

78. Section 1373 mandates uncertainty where Sanctuary City laws seek to provide

19 certainty. Because of Section 1373, San Francisco cannot tell the public that it will never share

20 information about citizenship or immigration status. Any attempt to impose a uniform rule is fettered

21 by the individual discretion of over 30,000 employees and officials. This is not the way San Francisco

22 chooses to govern. It is chaos imposed by the Federal government.

23

79. To the extent the Executive Order incorporates Section 1373(a), it is invalid for all of

24 the reasons described above.

25

B. Federal Funds Received by San Francisco

26

80. San Francisco receives in excess of $1.2 billion annually in federal funds. This is

27 approximately 13% of San Francisco’s annual budget.

28

COMPLAINT: CCSF v. TRUMP

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1

81. Only a small percentage of all federal funds received by San Francisco relate to

2 immigration or law enforcement.

3

82. San Francisco receives federal funds for entitlement programs for its residents

4 including Medicaid and Medicare, Temporary Assistance to Needy Families, Supplemental Nutrition

5 Assistance Program, Foster Care, Child Welfare Programs, and Child Support Services.

6

83. San Francisco also receives federal grants for infrastructure and transportation projects,

7 public health programs, workforce development, supportive housing, and veterans’ services, among

8 other things.

9

84. Congress has established numerous conditions governing eligibility for these funds. For

10 instance, to receive Medicaid funds, a state must create a state plan that includes assurances to the

11 Federal government that the state will provide specified types of care and that the state regulates health

12 insurance providers to ensure access to medical assistance, among many other requirements. 42 U.S.C.

13 § 1396(a).

14

85. As with entitlement programs, most federal grants are awarded based on statutory

15 eligibility criteria. For example, HUD Community Development Block Grants fund many projects to

16 combat evictions, maintain stable housing occupancy and supply, and incentivize affordable unit

17 construction. These grants require the grantee to prepare a statement of community development

18 objectives and projected use of funds, provide a citizen participation plan, and certify other

19 enumerated criteria. 42 U.S.C. § 5304.

20

86. No federal funds received by San Francisco have statutory conditions specifically

21 requiring compliance with Section 1373.

22

87. San Francisco receives most federal funds as reimbursements. Thus, San Francisco is

23 currently providing services and benefits that the Federal government has agreed to reimburse. The

24 Executive Order calls into question whether the Federal government will in fact reimburse San

25 Francisco for these funds. This presents San Francisco with a Hobson’s choice. San Francisco, facing

26 possible reductions, could cut services now, harming the public. Or San Francisco could continue to

27 spend knowing that if cuts come they could come suddenly, outside of the budget process, and the San

28

COMPLAINT: CCSF v. TRUMP

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1 Francisco will have to impose service cuts even more radically at that time, given that funds have

2 already been spent in anticipation of federal reimbursement.

3

C. Budget Impact of the Executive Order

4

88. The Executive Order’s threat to cut federal funds impairs San Francisco’s internal

5 government operations by hampering its budget process. The threatened loss of federal funds renders

6 San Francisco unable to prepare a balanced budget for the next fiscal year.

7

89. San Francisco has already begun the seven-month process of adopting the annual

8 budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the

9 Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco

10 departments with detailed guidance on the preparation of departments’ budget requests. Public

11 hearings have begun to consider departmental budget proposals. Most San Francisco departments must

12 submit their budget requests for the coming fiscal year to the Controller by February 21. The

13 Controller must submit a consolidated budget proposal to the Mayor by March 1, the Mayor must

14 submit budget proposal to the Board of Supervisors by June 1, and the Board must approve a balanced

15 budget by August 1.

16

90. The Executive Order’s threat to cut federal funds is manifestly coercive. This is why at

17 least one jurisdiction has already changed its policy about immigration detainers in response to the

18 Executive Order. The day after the Executive Order was issued, Miami-Dade County Mayor Carlos

19 Gimenez instructed the county’s interim corrections director to “fully cooperate” with the Federal

20 government and comply with all immigration detainer requests, eliminating a previous federal

21 reimbursement requirement. “It’s really not worth the risk of losing millions of dollars to the residents

22 of Miami-Dade County in discretionary money from the feds,” said Mayor Gimenez. Ray Sanchez,

23 Trump’s Sanctuary Crackdown, CNN Politics (Jan. 27, 2017, 6:34 PM ET),

24 http://www.cnn.com/2017/01/27/politics/miami-dade-mayor-sanctuary-crackdown/. There is little

25 doubt that is exactly what the President intends in his promise to end sanctuary cities.

26

D. Community Relations Impact of the Executive Order

27

91. The Executive Order fosters an atmosphere of fear and distrust between undocumented

28 immigrants and local government officials in San Francisco.

COMPLAINT: CCSF v. TRUMP

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1

92. By heightening undocumented immigrants’ concerns that any interaction with San

2 Francisco officials will lead to their information being turned over to ICE, the Executive Order

3 discourages undocumented immigrants from reporting crimes, seeking public health services, and

4 otherwise engaging with San Francisco programs and services. This threat harms public safety, public

5 health, and San Francisco’s ability to act in what San Francisco has determined to be the best interest

6 of its residents, consistent with federal and state law.

7

93. The Executive Order undermines San Francisco’s ability to provide critical services not

8 just to undocumented immigrants, but to all residents. When witnesses and crime victims will not talk

9 to the police, law enforcement suffers and the entire community is less safe. When children are not

10 vaccinated or the sick are not treated for communicable diseases, illness spreads throughout the

11 community. The United States Constitution guarantees states and local governments, such as San

12 Francisco, that they may make those decisions and do not have to carry out the Federal government’s

13 immigration programs.

14

94. San Francisco has been forced to expend its tax dollars educating San Francisco

15 officials and reassuring residents in response to the Executive Order.

16

95. As a result, the Executive Order causes the very harms San Francisco’s Sanctuary City

17 laws were designed to prevent. The Executive Order destroys rather than “foster[s] respect and trust

18 between law enforcement and residents,” wastes rather than “protect[s] limited local resources,” and

19 discourages rather than “encourage[s] cooperation between residents and City officials, including

20 especially law enforcement and public health officers and employees.” San Francisco Administrative

21 Code Ch. 12I.1.

22

CAUSES OF ACTION

23

COUNT ONE

DECLARATORY RELIEF – SAN FRANCISCO COMPLIES WITH 8 U.S.C. § 1373 24

25

96. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

26 if fully set forth herein.

27

97. San Francisco contends that it complies with Section 1373. San Francisco

28 Administrative Code Chapters 12H and 12I do not prohibit, or in any way restrict, any government

COMPLAINT: CCSF v. TRUMP

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1 entity or official from sending to, or receiving from, the Immigration and Naturalization Service

2 information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

3

98. Defendants contend that San Francisco does not comply with Section 1373.

4

99. An actual controversy presently exists between San Francisco and Defendants about

5 whether San Francisco complies with Section 1373.

6

100. A judicial determination resolving this controversy is necessary and appropriate at this

7 time. 8 9

COUNT TWO TENTH AMENDMENT – 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL

10

101. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

11 if fully set forth herein.

12

102. On its face, Section 1373 commandeers state and local governments in violation of the

13 Tenth Amendment to the Constitution by, inter alia, regulating the “States in their sovereign

14 capacity,” Reno, 528 U.S. at 151, limiting state authority to regulate internal affairs and determine the

15 duties and responsibilities of state employees, Gregory, 501 U.S. at 460, and ultimately forcing States

16 to allow their employees to use state time and state resources to assist in the enforcement of federal

17 statutes regulating private individuals, Reno, 528 U.S. at 151, and to provide information that belongs

18 to the State and is available to them only in their official capacity, Printz, 521 U.S. at 932-33 & n.17.

19

103. As applied to invalidate state and local Sanctuary City laws, like San Francisco

20 Administrative Code Chapters 12H and 12I, which were enacted to further legitimate local interests

21 grounded in the basic police powers of local government and related to public health and safety,

22 Section 1373(a) commandeers state and local governments and violates the Tenth Amendment to the

23 United States Constitution.

24

COUNT THREE

25

TENTH AMENDMENT – EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT DIRECTIVE IS UNCONSTITUTIONAL

26

27

104. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

28 if fully set forth herein.

COMPLAINT: CCSF v. TRUMP

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1

105. Executive Order Section 9(a) contains an Enforcement Directive stating: “The Attorney

2 General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

3 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

4 law.” Executive Order, at 8801.

5

106. The Federal government has taken the position that a state or local jurisdiction that fails

6 to affirmatively assist federal immigration officials—by, for example, refusing to comply with a

7 detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations—hinders the

8 enforcement of federal law and violates Section 1373.

9

107. Accordingly, the Enforcement Directive commandeers state and local governments,

10 violating Tenth Amendment to the United States Constitution by, inter alia, compelling them to

11 enforce a federal program by imprisoning individuals subject to removal at the request of the Federal

12 government when those individuals would otherwise be released from custody.

13

PRAYER FOR RELIEF

14

Wherefore, San Francisco prays that the Court grant the following relief:

15

1. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face;

16

2. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for

17

receiving federal funds;

18

3. Declare that Section 1373(a) is invalid as applied to state and local Sanctuary City laws,

19

like San Francisco Administrative Code Chapters 12H and 12I, which were enacted for

20

legitimate local purposes related to public health and safety;

21

4. Enjoin Defendants from enforcing Section 1373(a) against jurisdictions that enact

22

Sanctuary City laws for legitimate local purposes;

23

5. Declare that San Francisco complies with Section 1373;

24

6. Enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply

25

with Section 1373;

26

7. Enjoin unconstitutional applications of the Enforcement Directive in Executive Order

27

Section 9(a);

28

8. Award San Francisco reasonable costs and attorney’s fees; and

COMPLAINT: CCSF v. TRUMP

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1

9. Grant any other further relief that the Court deems fit and proper.

2

3 Dated: January 31, 2017

4

DENNIS J. HERRERA

5

City Attorney RONALD FLYNN

6

JESSE C. SMITH YVONNE R. MERÉ

7

MOLLIE M. LEE SARA J. EISENBERG

8

Deputy City Attorneys

9 By: /s/ Dennis J. Herrera

10

DENNIS J. HERRERA

City Attorney

11

12

By: /s/ Mollie M. Lee

MOLLIE M. LEE

13

Deputy City Attorney

14

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO 15

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COMPLAINT: CCSF v. TRUMP

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1

FILER’S ATTESTATION

2

I, Mollie M. Lee, am the ECF user whose identification and password are being used to file

3 this COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF. Pursuant to Civil Local

4 Rule 5-1(i)(3), I hereby attest that the other above-named signatories concur in this filing.

5

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EXHIBIT 1

CHAPTER 12H: IMMIGRATION STATUS

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San Francisco Administrative Code

CHAPTER 12H: IMMIGRATION STATUS

Page 1 of 2

Sec. 12H.1. Sec. 12H.2. Sec. 12H.3. Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

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CHAPTER 12H: IMMIGRATION STATUS

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(Added by OrdC. aC37sa5e-s89e3, :A31p:7p1.-7c1-0vc/2-v04-/080940; 8a4m58e-5nWd-eWHd bOHy OOrdD. oD22co8u-c0m9u,meFinleetnN1to1.10-921F03iF2le,ilAdepd0p.101/023-2/108/-7120/71097; OPraPd.ga9e6g-e12672, F8oilfeo4Nf 1o4. 4160022, App.

6/17/2016, Eff. 7/17/2016)

SEC. 12H.2-1. [REPEALED.]

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.

The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)

SEC. 12H.4. ENFORCEMENT.

The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

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EXHIBIT 2

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

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San Francisco Administrative Code

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

Page 1 of 7

Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.

The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.

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Given that ciCvaCilsaiemsem3:3i1g:7r1a-7cti-voc-nv0-d00e40t8a4i58n-5eWr-sWHaOHreOisDsuoDecoducbmuymeinmetnm1ti11g-r2atFioiFlneildoefd0fi1c0/e23r/s10/w71/i71th7oPutaPjgauedgie3ci03al1oofov4fe14rs4ight, and the

regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance,

there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by

probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil

immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE

"Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the

Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in

custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that

detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See

alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *10-

12 (N.D. Ill. filed May 5, 2014).)

On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require state or local law enforcement officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.

According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.

The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.

In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.

First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions

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about local lawCeaCnsafeosre3c:e31m:71e-7cn-vtc's-v0l-0i0a40b8i4l5i8t-y5W-fWoHrOHcOonDstoDitcuoutcimounmeanletvn1ito11la-2tioFniFlseilidef d0an10y/23p/10e/r71s/7o1n7iPsaPogvaeegred3e13ta2oinfoe4fd14w4hen

immigration agents are unable to be present at the time of the person's release from local custody.

Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.

The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.

The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.

In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.2. DEFINITIONS.

"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed. (b) The individual has been acquitted of all criminal charges filed against him or her. (c) The individual has served all the time required for his or her sentence. (d) The individual has posted a bond, or has been released on his or her own recognizance. (e) The individual has been referred to pre-trial diversion services.

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CHAPTER 12I: CIVIL IMMIGRATION DETAINERS (f) The indiCviaCdsaueasle3i:s31o:71t-h7ce-vrc-wv0-i0s0e408e4l58ig-5Wi-bWlHeOHfoOr DreoDlecoauscmeumuennedtne1tr11s-ta2tFe iFolerildelod0c1a0l/23l/a10w/71./717 PaPgaege3233ofo4f 144

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"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.

"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.

"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.

"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.

"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.

"Personal information" means any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information.

"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).

"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.

(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and

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(2) A magCisaCtsraaestee3h:31a:7s1-d7ce-vct-ev0r-m004i0n84e58d-5Wt-hWaHtOHthOerDe oDiscopucrmuombeanebtnle1t 1c1-a2usFeiFlteoildebd0e1l0i/e23v/1e0/7t1h/71e7inPdaPivgaiedgue3a3l3i4osfog4uf 1i4lt4y of a Violent

Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.

(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.

(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:

(1) The individual either:

(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or

(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or

(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and

(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a) (3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

(e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.

(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.4. PURPOSE OF THIS CHAPTER.
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The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary

notification of release of individuals, transmission of personal information, and civil immigration documents

based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.5. SEMIANNUAL REPORT.

By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.6. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
CODIFICATION NOTE
1. So in Ord. 204-13.

SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

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In enacting aCnaCdsaimesep3l:e31m:71e-7cn-vtci-nv0g-00t40h84is58C-5Wh-WaHpOHteOr 1D2oDI ctohucemuCmeinteytni1ts11a-s2sFumiFleiilndegd0a10n/23u/1n0/d71e/71rt7akPinaPggaeogne3ly536toofop4fr1o4m4ote the

general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of

which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.8.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.10.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.11.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

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EXHIBIT 3

CaCsaese3:31:71-7c-vc-v0-00408458-5W-WHOHO DoDcoucmumenetn1t 11-2 FiFleilded010/23/10/71/717 PaPgaege3738ofo4f 144
Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens. Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
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mstockstill on DSK3G9T082PROD with E2

8800

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Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as ‘‘Secure Communities’’ referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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8802

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Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017–02102 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 25, 2017.

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JS-CAND 44 (Rev. 07/16) CaCsaes3e:137:1-7cv-c-0v-00408458-5W-WHOHCOIVDoIDLcoucCmuOemneVtn1Et1R1--21SHFFiElieleEddT0021/0/371/1/177 PPaaggee413ooff244
The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

CITY AND COUNTY OF SAN FRANCISCO,

DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States Department of Homeland Security, DANA J. BOENTE, Acting Attorney General of the United States, DOES 1-100

(b) County of Residence of First Listed Plaintiff San Francisco County
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number)
Dennis J. Herrera, City Attorney, State Bar #139669 Mollie M. Lee, Deputy City Attorney, State Bar #251404 San Francisco City Attorney's Office 1 Dr. Carlton B. Goodlett Place, City Hall, Rm. 234 San Francisco, California 94102 Telephone No. 415.554.4748

County of Residence of First Listed Defendant Washington County
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

of Business In This State

4

4

2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

Citizen or Subject of a Foreign Country

3

3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
Of Veteran’s Benefits 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability
320 Assault, Libel & Slander
330 Federal Employers’ Liability
340 Marine
345 Marine Product Liability
350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal Injury -
Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations
445 Amer. w/Disabilities– Employment
446 Amer. w/Disabilities– Other
448 Education

PERSONAL INJURY 365 Personal Injury –
Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee– Conditions of Confinement

625 Drug Related Seizure of Property 21 USC § 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

422 Appeal 28 USC § 158 423 Withdrawal
28 USC § 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS–Third Party
26 USC § 7609

V. ORIGIN (Place an “X” in One Box Only)

1 Original

2 Removed from

Proceeding

State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5 Transferred from Another District (specify)

6 Multidistrict Litigation–Transfer

6

6

OTHER STATUTES
375 False Claims Act 376 Qui Tam (31 USC
§ 3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision
950 Constitutionality of State Statutes

8 Multidistrict Litigation–Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Tenth Amendment, U.S. Const. amend. X; 28 U.S.C. Sections 2201 and 2202 et seq.
VI. CAUSE OF ACTION Brief description of cause:
Declaration that San Francisco complies with federal law; challenge to constitutionality of Presidential Executive Order and related federal law.

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, Fed. R. Civ. P.

VIII. RELATED CASE(S),

IF ANY (See instructions):

JUDGE

IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes

No

DOCKET NUMBER

(Place an “X” in One Box Only)

SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE

DATE: 01/31/2017

SIGNATURE OF ATTORNEY OF RECORD: /s/ Mollie M. Lee

JS-CAND 44 (rev. 07/16C) aCsaes3e:137:1-7cv-c-0v-00408458-5W-WHOHODoDcoucmuemnetn1t11--21 FFilieledd0021/0/371/1/177 PPaaggee424ooff244
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44
Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)
c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).”
II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.
(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.
(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an “X” in one of the six boxes.
(1) Original Proceedings. Cases originating in the United States district courts.
(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box.
(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.
(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above.
(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.
Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”
Date and Attorney Signature. Date and sign the civil cover sheet.

Case 3:17-cv-00485-WHO Document 11-3 Filed 02/07/17 Page 1 of 322
EXHIBIT B

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1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: (408) 299-5900

Facsimile: 415 397 7188

Facsimile: (408) 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN JOSE DIVISION

14 COUNTY OF SANTA CLARA,

Case No.

15

Plaintiff,

16

v.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, DANA J. BOENTE, in his official capacity as Acting Attorney General of the
20 United States, MARK SANDY, in his official capacity as Acting Director of the
21 Office of Management and Budget, and DOES 1-50,
22 Defendants.
23

24

25

26

27

28

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1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION ...........................................................................................................................1

4 JURISDICTION AND VENUE ......................................................................................................5

5 INTRADISTRICT ASSIGNMENT.................................................................................................5

6 THE PARTIES.................................................................................................................................5

7 FACTUAL ALLEGATIONS ..........................................................................................................6

8

A. The County Relies on Federal Funding. ..................................................................6

9

1. 1.9 million residents depend upon the County for essential services. .........6

10

2. The County relies on federal funds to provide essential services and

meet its budget. ............................................................................................7

11

3. The County must make budgetary decisions today for future

12

services. ......................................................................................................11

13

4. County policies and practices regarding cooperation with U.S.

Immigration and Customs Enforcement (“ICE”) conflict with the

14

President’s stated policies. .........................................................................12

15

B. The President’s Executive Order Regarding “Sanctuary Jurisdictions” is

Unconstitutional. ....................................................................................................16

16

1. The Executive Order constitutes an unprecedented attempt to

17

expand executive power.............................................................................16

18

2. Section 9 of the Executive Order purports to vest the President with

legislative powers that even Congress does not lawfully possess. ............18

19

3. The President’s and his subordinates’ statements reveal the

20

Executive Order’s unconstitutionally broad scope. ...................................22

21

C. Congress Considered and Rejected Conditioning Federal Law Enforcement

Funds on Compliance with Section 1373. .............................................................25

22

D. The County Requires Immediate Relief. ...............................................................29

23

CLAIMS FOR RELIEF .................................................................................................................31

24

CONCLUSION ..............................................................................................................................39

25

PRAYER FOR RELIEF ................................................................................................................40

26

27

28

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1

INTRODUCTION

2

1. This lawsuit challenges President Donald J. Trump’s January 25, 2017 executive

3 order directing reprisals against state, local, and municipal governments that he deems to be so-

4 called “sanctuary jurisdictions.” Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the

5 “Executive Order”). The Executive Order is patently unconstitutional under the Constitution’s 6 plain text, as well as settled United States Supreme Court precedent. The Executive Order throws 7 Plaintiff County of Santa Clara’s current budgetary and planning process into chaos, and also

8 poses a real risk to the health, welfare, and safety of thousands of County residents.

9

2. The Executive Order purports to seize for the President and his subordinate

10 executive officers—namely, the Attorney General and the Secretary of Homeland Security—the

11 power to declare any “sanctuary jurisdiction” ineligible to receive any federal funds. The 12 Executive Order nowhere defines the term “sanctuary jurisdiction.” The Secretary of Homeland 13 Security has plenary authority to designate any state, city, county, or other entity as a “sanctuary

14 jurisdiction,” despite that term having no defined meaning.

15

3. The Executive Order fails to provide any state or local government designated as a

16 “sanctuary jurisdiction” with a right to challenge the designation through judicial review or any

17 other means. Indeed, the Executive Order does not even require the federal government to 18 provide notice to a state or local government that it has been designated a “sanctuary 19 jurisdiction.” Accordingly, the Executive Order gives the President and his executive agents

20 unfettered, unreviewable discretion to strip any state or local government of its right to obtain any 21 federal money, at any time or for any purpose, including money Congress has already 22 appropriated and directed be paid.

23

4. The Executive Order does not stop there. It also directs the Attorney General to

24 “take appropriate enforcement action” not only against so-called “sanctuary jurisdictions,” but

25 also any “entity” that “has in effect a statute, policy, or practice that prevents or hinders the

26 enforcement of Federal law.” The Executive Order does not define what constitutes “preventing” 27 or “hindering” enforcement of federal law. As a result, this broadly and carelessly worded 28 directive requires our nation’s top law-enforcement officer to take reprisals against any state, city,

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1 county, or other municipality that he may decide, in his sole and unreviewable discretion, has

2 taken any act that he believes “hinders” any interest set forth in the vast body of federal law. An

3 aggrandizement of executive power of this magnitude has rarely been attempted in the history of

4 the Republic.

5

5. The Executive Order also grants the Attorney General authority to commandeer

6 local law enforcement officers to carry out the President’s immigration agenda. It further

7 obligates the Attorney General to retaliate against a local government whose law enforcement

8 officers fail to provide what he considers “full compliance,” in his sole and unreviewable

9 discretion.

10

6. The Executive Order contains other enormous and obvious problems. Section 5,

11 for example, vastly expands federal immigration enforcement priorities by prioritizing for

12 removal undocumented immigrants who, inter alia, have allegedly “committed acts that

13 constitute a chargeable criminal offense,” “abused any program related to receipt of public

14 benefits,” or who, “[i]n the judgment of an immigration officer, otherwise pose a risk to public

15 safety or national security.” Executive Order, Sec. 5(c), (e), (g) at 8800. These standardless

16 provisions encourage and sanction arbitrary, subjective, and discriminatory enforcement. And

17 Section 6 of the Executive Order requires assessment of “fines and penalties” against not only

18 undocumented persons but anyone who “facilitate[s] their presence in the United States.” This

19 undefined and unbounded category may include anyone who unknowingly rents a room to or

20 conducts business with an undocumented person, medical personnel who provide essential or

21 even life-saving services to an undocumented person, or even a lawyer defending such a person in

22 immigration proceedings.

23

7. Through this lawsuit, the County of Santa Clara (“the County”) challenges only

24 those aspects of the Executive Order’s unconstitutionality that directly injure the County’s

25 interests and are ripe for judicial review. Other challenges by other plaintiffs are sure to follow.

26 This action alleges that the Executive Order is unconstitutional for the following independent

27 reasons.

28

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1

8. First, the Executive Order seizes for the President and the executive branch the

2 power of the federal purse, which belongs exclusively to Congress under Article I, section 8,

3 clause 1 of our federal Constitution. Only Congress has the power to appropriate and spend

4 federal dollars. This power includes the right to determine who is eligible to receive federal

5 funds, as well as which conditions, if any, they must fulfill to receive those funds. The President

6 has no power to appropriate funds or unilaterally place conditions on eligibility for receipt of

7 federal money, much less to bar by fiat a state, city, or county from receiving any federal money

8 whatsoever. Yet that is what the Executive Order purports to do.

9

9. In fact, the Executive Order is so unconstitutionally overbroad that it claims

10 spending power for the President and the executive branch that even Congress lacks. Under a

11 long and unbroken line of United States Supreme Court precedent, Congress’s power to place

12 conditions on the receipt of federal funds is limited in several fundamental respects. Once it

13 provides money to a state, county, or city and the money is accepted, Congress is barred from

14 imposing new conditions. Nor may Congress impose conditions on federal money that are

15 unrelated to the federal interest furthered by the appropriated funds. And Congress cannot

16 impose a condition that is so coercive that it amounts to “a gun to the head,” leaving the state or

17 local government with no real choice but to buckle to a federal demand. The Executive Order

18 attempts to do all these things. Accordingly, even if the Executive Order were an Act of

19 Congress, or authorized by one, it would be unconstitutional.

20

10. Congress has not only failed to grant the President the spending power he now

21 claims, but it also considered and rejected the very policy the Executive Order now seeks to

22 impose by dictate. Indeed, Senator Jeff Sessions—the man tapped to become the Attorney

23 General referenced in the Executive Order—introduced a Senate bill in 2015 that would have

24 conditioned the receipt of certain, law-enforcement-related federal funds on compliance with

25 federal immigration enforcement directives and priorities. The bill died in committee, as did its

26 counterpart in the House of Representatives. After Mr. Sessions failed to achieve his policy ends

27 through the legislative process, the President simply imposed them through the Executive Order,

28 which repeats portions of Mr. Sessions’s failed bill verbatim. A long line of Supreme Court

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1 precedent makes clear that when the President acts in derogation of the “expressed or implied will

2 of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

3 579, 637 (1952) (Jackson, J., concurring). That is the case here. The President cannot enact Mr.

4 Sessions’s bill by executive order, especially when Congress itself declined the opportunity.

5

11. Second, the Executive Order is unconstitutional because it is too vague to provide

6 the County with reasonable notice of what it must do to comply with its terms and avoid

7 unspecified “enforcement actions.” The Executive Order requires states, cities, and counties to

8 refrain from “hinder[ing]” any enforcement of any federal law. Because this standard is nowhere

9 defined in the Executive Order and its application is left up entirely to the sole and unreviewable

10 discretion of the Attorney General, a state, city, or county could suffer whatever reprisals deemed

11 appropriate by the Attorney General for any act deemed insufficiently supportive of federal law

12 enforcement. Such a vague order cannot stand.

13

12. Third, the Executive Order denies the County the procedural due process

14 protections afforded to it by the Fifth Amendment. The Executive Order provides the County no

15 clue as to which acts would trigger the “hindrance” standard, and no opportunity to contest the

16 Attorney General’s decision or have that decision reviewed by an independent tribunal. Indeed,

17 the Executive Order fails to guarantee that the County will even receive notice that it has been

18 designated a “sanctuary jurisdiction” subject to deprivation of federal funds and unspecified

19 enforcement actions. Because it fails to provide affected jurisdictions with reasonable notice or

20 any opportunity to be heard, the Executive Order violates the Due Process Clause of the Fifth

21 Amendment to the United States Constitution.

22

13. Fourth, the Executive Order violates the Tenth Amendment and the federalism

23 principles that animate our governmental structure. By requiring that County officials take

24 unspecified actions to avoid “prevent[ing] or hinder[ing]” the federal government in the

25 enforcement of “Federal law,” the Executive Order commandeers state and local officials,

26 transforming them into federal apparatchiks and severing the bonds of political accountability

27 inherent in our federal system.

28

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1

14. It is no exaggeration to say that the Executive Order contravenes centuries of

2 constitutional law establishing the separation of powers between the legislative and executive

3 branches of the federal government. It likewise flouts basic principles of federalism that prevent

4 the federal government from invading the sovereignty of state and local governments. It is a

5 naked grab for power that never has, does not, and cannot belong to the President or the executive

6 branch. It is wholly unconstitutional and must be struck down.

7

JURISDICTION AND VENUE

8

15. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this

9 action arises under the Constitution and the laws of the United States. The Court also has

10 jurisdiction under 28 U.S.C. § 1346 because this is a civil action or claim against the United

11 States founded upon the Constitution, an Act of Congress, and an executive regulation. Finally,

12 this Court has mandamus jurisdiction under 28 U.S.C. § 1361, which provides that “[t]he district

13 courts shall have original jurisdiction of any action in the nature of mandamus to compel an

14 officer or employee of the United States or any agency thereof to perform a duty owed to the

15 plaintiff.”

16

16. Venue is proper in this District under 28 U.S.C. § 1391(e) because Defendants are

17 officers and employees of the United States or any agency thereof acting in their official

18 capacities, Plaintiff resides in this District, and a substantial part of the events or omissions giving

19 rise to this action are occurring in this District.

20

17. The Court is authorized to award the requested declaratory, and preliminary and

21 permanent injunctive relief, pursuant to 28 U.S.C. §§ 2201–2202.

22

INTRADISTRICT ASSIGNMENT

23

18. Pursuant to Civil L.R. 3-2(c), this case should be assigned to the San Jose Division

24 of this Court because the action arises in Santa Clara County.

25

THE PARTIES

26

19. Plaintiff County of Santa Clara is a charter county organized and existing under

27 the laws of the State of California.

28

20. Defendant Donald J. Trump is the President of the United States. He is sued in his

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official capacity.
21. Defendant John F. Kelly is the Secretary of the U.S. Department of Homeland
Security, a federal government agency responsible for, among other things, the enforcement of
U.S. immigration laws. Defendant Kelly is sued solely in his official capacity.
22. Defendant Dana J. Boente is the Acting Attorney General of the U.S. Department of Justice.1 Defendant Boente is sued solely in his official capacity.
23. Defendant Mark Sandy is the Acting Director of the Office of Management and Budget.2 Defendant Sandy is sued solely in his official capacity.
24. The true names and capacities of Defendants identified as DOES 1-50 are
unknown to Plaintiff, and Plaintiff will amend this Complaint to insert the true names and
capacities of those fictitiously named Defendants when they are ascertained.
FACTUAL ALLEGATIONS
A. The County Relies on Federal Funding.
1. 1.9 million residents depend upon the County for essential services. 25. The County was established in 1850 as one of the first counties in California
statehood. Today, 1.9 million people reside in the County, and rely on it to provide essential
services, such as law enforcement, health and hospital care, education, care for youth and elderly,
and social services. Many of the County’s programs serve the neediest County residents, such as
abused and neglected children, indigent and uninsured individuals requiring health care, persons
who are mentally ill or substance dependent, and persons who are physically or mentally
disabled.
26. The County also oversees most regional public health and public safety functions,
including emergency planning and services, disease control and prevention, and criminal justice
administration, in addition to operating roads, airports, parks, libraries, election systems, fire
departments, and many other critical functions. 1 The President has nominated Senator Jeff Sessions to serve as Attorney General, and, if confirmed, Senator Sessions will replace Acting Attorney General Boente. 2 The President has nominated Congressman Mick Mulvaney to serve as Director of the Office of Management and Budget and, if confirmed, Representative Mulvaney will replace Acting Director Sandy.
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1

2. The County relies on federal funds to provide essential services and

meet its budget.

2

27. The County receives approximately $1 billion annually in federal funds, 3

representing about 15% of its $6 billion annual budget. Only a small fraction of the federal 4

funding the County receives relates to immigration or law enforcement. Much of the federal 5

funding the County receives is passed through the State of California. 6

28. As discussed below, the vast majority of federal funding the County receives is 7

used to provide essential safety-net programs and social services to its residents. Without these 8

federal funds, the County would be forced to make extraordinary cuts to critical services—and in 9

some cases totally eliminate key County services and functions. The elimination, or even 10

reduction, of federal funding would require the County to fundamentally and globally reallocate 11

funds and services. And, because the Executive Order purports to withdraw all federal funds 12

from “sanctuary jurisdictions,” the County is forced to determine now whether and how much to 13

cut services, and whether a global reallocation of resources is necessary. 14

Santa Clara Valley Medical Center 15

29. Santa Clara Valley Medical Center (“SCVMC”) is the only safety-net healthcare 16

provider in the County. Wholly owned and operated by the County, SCVMC provides healthcare 17

services to indigent and underserved patients whom other healthcare providers often refuse to 18

serve. It operates a 574-bed hospital, specialized centers that provide trauma, burn and 19

rehabilitation, renal and ambulatory care, ten ambulatory care clinics, and four medical and dental 20

units. 21

30. Approximately seventy percent of SCVMC’s $1.4 billion annual budget comes 22

from direct federal funding, as well as funds from other sources that are dependent on the 23

existence of a federal funding stream, and would not be provided in the absence of federal funds. 24

Together, these funds help pay for the full suite of health care that SCVMC provides, including 25

critical ambulatory primary and specialty care, women’s and children’s health services, neonatal 26

and pediatric intensive care, comprehensive adult and pediatric specialty services, comprehensive 27

oncology services, comprehensive trauma and emergency services, and other essential medical 28

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1 services, as well as emergency and acute psychiatric services. Federal funds also allow SCVMC

2 to invest in research, programs, and technologies that benefit all patients and society more

3 broadly.

4

31. If SCVMC were to lose the funding that it receives from federal grants and

5 reimbursements, hundreds of thousands of patients—including infants and children, the elderly,

6 and those with chronic disease—would be left without viable healthcare options. This would

7 create an untenable healthcare crisis in the community.

8

Social Services Agency

9

32. The County’s Social Services Agency (“SSA”) provides a wide array of services

10 to the County’s most vulnerable residents, including child welfare and child protective services,

11 aid to needy families, services and support to disabled children and adults, services and protection

12 to elderly individuals, and administration of many public benefits programs.

13

33. The SSA receives over $300 million in federal funding each year—approximately

14 40% of its budget—to support these essential safety-net services. Nearly all of the County’s SSA

15 funding is reimbursement-based, requiring the County to front the money necessary to provide

16 services to its residents now based on the federal government’s promise to reimburse the County

17 later.

18

34. The County relies on these federal funds to provide critical social services to its

19 neediest residents—including child welfare services, in-home care and nutrition services for the

20 elderly, and time-limited assistance to the County’s lowest-income families. Furthermore,

21 because a substantial amount of SSA’s federal funding pays for service providers, cutting those

22 funds would threaten the jobs of approximately 23,000 workers who perform social work, home

23 health care, and food services.

24

Behavioral Health Services Department

25

35. The County’s Behavioral Health Services Department provides essential services

26 to residents struggling with mental illness and substance abuse. It offers a broad range of services

27 including mental health urgent care, crisis intervention, housing and support services, psychiatric

28

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1 services, residential treatment programs, substance abuse treatment and services, jail diversion

2 programs, and substance abuse prevention and education services.

3

36. The Behavioral Health Services Department receives approximately $131 million

4 in direct federal funding annually, accounting for over 30% of its operating budget.

5

37. Without this federal funding, the County would be forced to drastically reduce the

6 quantity and quality of behavioral health services it provides, and would be forced to significantly

7 cut staff. In turn, residents would lose access to critical behavioral health services, making them

8 more vulnerable to crises or decompensation, relapse, and increased risk of homelessness,

9 addiction, criminal activity, incarceration, and death.

10

Public Health Department

11

38. The County’s Public Health Department protects and promotes the health of the

12 County’s residents through programs to identify, treat, and stop the spread of communicable and

13 potentially lethal diseases; to provide disease and injury prevention; to offer immunizations for

14 children and travelers; and to provide health education. The fifteen cities within the County lack

15 their own public health departments and depend entirely on the County’s Public Health

16 Department to provide these services.

17

39. Federal funds comprise approximately $40 million of the Public Health

18 Department’s $100 million annual budget.

19

40. The loss of federal funds would have a devastating impact on the County’s ability

20 to continue providing core public health services for the communities most in need. The County

21 depends on these federal funds to support, among other things: the prevention of communicable

22 diseases; maternal, child, and adolescent health care; food benefits, breastfeeding support, and

23 nutrition education for low-income mothers and their children; medical care for uninsured and

24 underinsured individuals living with HIV/AIDS; services for severely disabled children with

25 chronic diseases; immunization support and vaccination services for children and schools; and

26 programs to prepare for and respond to public health emergencies and potential terrorism.

27

Office of Emergency Services

28

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1

41. The County’s Office of Emergency Services (“OES”) is responsible for facilitating

2 the County’s preparation for, response to, and recovery from disasters of all types—from severe

3 weather events to terrorism to major earthquakes. Among its responsibilities, OES provides

4 emergency management training exercises; engages in region-wide hazard planning; operates the

5 Santa Clara County Emergency Operations Center during emergency incidents; and coordinates

6 regional efforts to recover following emergency incidents.

7

42. For fiscal year 2016, OES has been awarded more than $5 million in federal

8 funding, representing almost two-thirds of its budget. All of this funding is provided by the

9 federal government on a reimbursement basis, with several million in grant funding currently

10 outstanding—i.e., the funds have been awarded by the federal government, but the County has

11 not yet been reimbursed.

12

43. These federal funds are critical to keeping the local community safe during natural

13 disasters, man-made emergencies, acts of terrorism, and other large-scale catastrophic events.

14 Furthermore, these funds are essential to the County’s community- and region-wide emergency

15 planning and preparedness.

16

Other Federal Funding

17

44. Despite their broad reach, the funding streams described above represent only a

18 fraction of the County’s federal funding sources. Numerous other County departments and

19 agencies rely on federal funding to provide essential health, safety, and welfare services to the

20 community, including the Consumer and Environmental Protection Agency, the Office of

21 Supportive Housing, the Roads and Airports Department, the Facilities and Fleet Department, the

22 Department of Child Support Services, the Probation Department, the Sheriff’s Office, the

23 Department of Parks and Recreation, and the Office of the County Executive.

24

45. Without federal funding, these departments and agencies would have to roll back

25 their support of programs that comprise the very fabric of the community, including housing and

26 community development, housing stability and supportive services for the chronically homeless,

27 highway planning and construction, water quality improvement, agricultural pest management,

28 child support, juvenile justice, security and intelligence initiatives, and multifaceted crime

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1 prevention. It is a near certainty that the County’s federal funding touches each and every one of

2 its 1.9 million residents in some way or another.

3

3. The County must make budgetary decisions today for future services.

4

46. Each year, as required by the County Charter, the County Executive develops a

5 recommended budget for approval by the Board of Supervisors. To develop that budget, County

6 staff carefully analyzes and weighs a multitude of factors including anticipated revenues, specific

7 service needs for diverse subsets of County residents, salary and benefits costs for the County’s

8 18,000 employees, and an array of local priorities.

9

47. The County is currently in the process of formulating its budget for the fiscal year

10 beginning on July 1, 2017.

11

48. Reliable access to federal funding plays a critical role in the County’s budgeting

12 process. The County receives federal funds in several different forms. For example, many of the

13 federal funds the County receives are provided as reimbursements, under which the County first

14 expends its own funds, and later seeks partial or complete reimbursement from the federal

15 government. Other federal revenues are provided on a fee-for-service basis, under which the

16 County must expend its own resources to deliver services, and then subsequently seek fee-based

17 payments from the federal government. Still other federal funds are provided to the County in the

18 form of direct, upfront grants. The County receives all federal funding either directly from the

19 federal government, or passed through the State of California or other government entities.

20

49. The Executive Order has thrown the County’s budget process into chaos, as the

21 County suddenly faces the possibility that more than $1 billion of its anticipated revenues could

22 disappear at the executive branch’s whim. The County’s contingency reserve is approximately

23 $130 million, so there is no means by which the County could possibly absorb the resulting

24 shortfall. Because the County’s federally funded programs operate continuously, the County

25 must decide whether to continue incurring hundreds of millions of dollars in costs that may never

26 be reimbursed by the federal government, or instead discontinue basic safety-net services

27 delivered to its most vulnerable residents.

28

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1

4. County policies and practices regarding cooperation with U.S.

Immigration and Customs Enforcement (“ICE”) conflict with the

2

President’s stated policies.

3

50. The County is responsible for operating numerous criminal justice agencies,

4 including the County Sheriff’s Office, Department of Correction, District Attorney’s Office,

5 Public Defender’s Office, Probation Department, and Office of Pretrial Services. These agencies

6 investigate and prosecute crimes; provide criminal defense to indigent defendants; provide

7 services to arrestees during the pretrial phase as well as post-sentencing to reduce flight and

8 recidivism; and ensure the safety and security of all residents of the County, including those in

9 custody in the County jail system, which is the fifth largest in California.

10

51. As part of their responsibility to apprehend and detain those suspected or

11 convicted of committing criminal offenses, the County Sheriff’s Office and Department of

12 Correction have had significant experience with ICE “civil detainer requests” and other

13 immigration enforcement mandates.

14

52. An ICE civil detainer request asks a local law enforcement agency to continue to

15 detain an immigrant inmate—who is generally being held in a local jail for violations or

16 suspected violations of state criminal laws—for up to 48 additional hours after his or her regularly

17 scheduled release date so that ICE can decide whether to take the individual into custody and

18 initiate removal proceedings.

19

53. Prior to late 2011, the County Sheriff’s Office and Department of Correction

20 regularly responded to ICE civil detainer requests and other inquiries from federal immigration

21 officials. As a result of ICE civil detainer request, during this period, the County was holding on

22 average 135 additional inmates at a time, at a daily cost of $159 per person.

23

54. In a public exchange of letters from August through October 2010, then-County

24 Counsel Miguel Márquez asked ICE to clarify, among other things, (i) whether ICE viewed

25 detainer compliance as compulsory, and (ii) whether the federal government would indemnify

26 and reimburse the County for the costs associated with civil detainer requests. ICE responded

27 that detainers are “requests,” but that ICE would neither reimburse detention costs nor indemnify

28 localities for any liability arising from responding to detainer requests.

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1

55. Over the next several months, a task force convened by the County Board of

2 Supervisors, and comprised of officials from each of the County criminal justice agencies listed

3 above, carefully reviewed the County’s history of compliance with ICE detainer requests, placing

4 special focus on the impact on public safety in the community. The task force determined that a

5 tailored approach of honoring ICE detainer requests only for individuals with serious or violent

6 felony convictions, as defined under California law, would best protect public safety in the

7 County.

8

56. When the Board of Supervisors formally adopted this position in the County Civil

9 Detainer Policy in October 2011, it also included a provision stating that the County would honor

10 ICE detainer requests for individuals with the requisite convictions only if ICE would enter into a

11 prior written agreement “by which all costs incurred by the [C]ounty in complying with the ICE

12 detainer shall be reimbursed.” To date, ICE has refused to enter into a reimbursement agreement

13 with the County, so the County has not honored any detainer requests since October 2011.

14 Although the precise scope and meaning of the undefined term “sanctuary jurisdictions” is

15 unknown and the executive branch’s discretion to declare a state or local government to be such a

16 jurisdiction is boundless, the County reasonably anticipates that its practices would place it on the

17 Department of Homeland Security’s weekly list of jurisdictions “that ignored or otherwise failed

18 to honor any detainers.” Executive Order, Sec. 9(b) at 8801.

19

57. Additionally, in 2010, the County Board of Supervisors adopted a Resolution

20 affirming the separation between County services and the enforcement of federal civil

21 immigration law. The Resolution prohibits County employees, including law enforcement

22 officers, from initiating an inquiry or enforcement action based solely on an individual’s actual or

23 suspected immigration status, national origin, race/ethnicity, or English-speaking ability. It also

24 prohibits the use of County funds or resources to investigate, question, apprehend, or arrest an

25 individual solely because of an actual or suspected violation of immigration law, or to transmit to

26

27

28

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ICE for purposes of federal immigration enforcement information collected by the County in the course of providing critical social services.3
58. The County’s policies relating to involvement in federal immigration enforcement
were specifically designed to advance public safety. County law enforcement officials rely on
members of the local community—including those who lack lawful immigration status—to report
crimes, come forward as witnesses, aid in apprehending individuals with bench warrants, and
assist with criminal prosecutions.
59. When local law enforcement officers are perceived as immigration enforcers, the
result is a dangerous chilling effect on trust and cooperation from the community. Individuals are
less likely to seek police officers’ help for fear of being questioned about their immigration status.
Crimes go unreported. Victims and witnesses are hesitant to offer testimony. And communities
are less safe. The view that involving local officials in federal immigration enforcement
undermines public safety is not unique to the County of Santa Clara. Indeed, local law
enforcement agencies around the country echo the County’s experience.
60. The Executive Order wrongly suggests that only maximum cooperation with
federal immigration enforcement priorities by local law enforcement agencies can protect public
safety. In fact, forcing local governments such as the County to engage in immigration
enforcement—whether by requiring them to honor ICE civil detainer requests or, more broadly,
by compelling them to act as federal immigration officers—drives a wedge between local law
enforcement officers and the communities they serve and protect, undercutting law enforcement’s
core public safety mandate.
61. Compelling the County to engage in immigration enforcement also threatens the
County’s fiscal stability. First, civil detainer requests impose significant costs that the federal
3 Starting in 2016, two federal grant programs in which the County had participated—the State Criminal Alien Assistance Program (SCAAP) and Edward Byrne Memorial Justice Assistance Grant (JAG)—required the County to certify its compliance with “all applicable federal laws.” On July 7, 2016, the U.S. Department of Justice issued guidance explaining that 8 U.S.C. § 1373, which relates to sharing of immigration status information, is now considered an “applicable federal law” for purposes of SCAAP and JAG funds, and that state and local governments with any restrictions on information-sharing with ICE would be viewed as noncompliant. To retain its discretion, the County decided in October 2016 not to apply for or accept future SCAAP or JAG funds from the federal government.
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1 government refuses to reimburse. Although a civil detainer request formally asks a local law

2 enforcement agency to maintain custody of an individual for an additional 48 hours beyond when

3 he or she would otherwise be released, individuals subject to civil detainers typically are held for

4 much longer than they would absent the detainer—largely because the existence of a detainer

5 request makes an individual highly unlikely to be offered a bail bond to facilitate his or her

6 release from custody pending trial. The costs associated with compliance with ICE detainer

7 requests can quickly skyrocket, diverting County resources away from critical public safety

8 functions to federal civil immigration enforcement.

9

62. Second, honoring civil detainer requests would expose the County to substantial

10 liability for constitutional violations. Federal courts around the country have held that honoring

11 ICE civil detainer requests exposes local law enforcement agencies to liability under the Fourth

12 Amendment. E.g., Morales v. Chadbourne, 793 F.3d 208, 215-16 (1st Cir. 2015); Miranda-

13 Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 WL 1414305, at *11-12 (D. Or.

14 Apr. 11, 2014). The federal government has made clear that it will not indemnify local law

15 enforcement agencies against constitutional claims, even when they arise directly out of actions

16 the local agency has taken at the federal government’s behest.

17

63. In addition, the County is currently a defendant in a class action lawsuit alleging

18 Eight and Fourteenth Amendment violations relating to significant overcrowding in the County

19 jails. Substantially increasing the jail population by honoring ICE detainers would directly and

20 immediately compound the County’s potential liability.

21

64. Even if the County rescinded its policies governing local participation in federal

22 immigration enforcement, as the Executive Order seeks to compel, the County would still be

23 required to comply with state laws that also significantly constrain its participation in federal

24 immigration enforcement activities. California’s Transparency and Responsibility Using State

25 Tools (TRUST) Act, Cal. Gov. Code § 7282.5, permits local law enforcement agencies to honor

26 ICE detainer requests only with respect to individuals in their custody who have specific prior

27 criminal convictions or criminal charges as to which a judge has made a finding of probable

28 cause. Moreover, the pending “California Values Act,” Senate Bill 54, would (a) prohibit state

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and local law enforcement agencies and school police from using public resources to investigate, interrogate, detain, detect, or arrest anyone solely for immigration enforcement purposes, and (b) require state agencies to ensure that information collected from individuals in the course of service delivery is limited to that necessary to provide services and is not used or disclosed for any other purpose.
65. Indeed, in a memorandum issued by the Department of Justice’s Office of the Inspector General (OIG) relating to 8 U.S.C. § 1373, the OIG called out the entire State of California as a jurisdiction that does not fully comply with federal immigration enforcement priorities.4 Because much of the County’s federal funding is passed through agencies of the State of California, these active questions about the continuation of federal funding streams to the State of California as a whole substantially exacerbate the County’s fiscal uncertainty.
B. The President’s Executive Order Regarding “Sanctuary Jurisdictions” is Unconstitutional. 1. The Executive Order constitutes an unprecedented attempt to expand executive power.
66. On January 25, 2017, President Donald J. Trump issued Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” That Executive Order was published in the Federal Register on January 30, 2017, at Vol. 82, No. 18. It is available on the White House public website (https://www.whitehouse.gov/the-pressoffice/2017/01/25/Presidential-executive-order-enhancing-public-safety-interior-united), and is attached hereto as Exhibit A.
67. The Executive Order represents a gross overreach of executive power. This power grab comes at the expense of powers constitutionally vested in the Congress, as well as state and local governments.
68. Section 1 of the Executive Order announces the order’s “[p]urpose.” Executive Order, Sec. 1 at 8799. It declares that “Sanctuary jurisdictions across the United States willfully
4 Memorandum from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs, “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients,” at 13 (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf (“Horowitz Memo”).
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1 violate Federal law in an attempt to shield aliens from removal from the United States. These

2 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

3 Republic.” Id.

4

69. Section 2 of the Executive Order sets forth the “policy of the executive branch.”

5 Id. Sec. 2 at 8799. It describes that policy as, among other things, “[e]nsur[ing] that jurisdictions

6 that fail to comply with applicable Federal law do not receive Federal funds, except as mandated

7 by law.” Id. Sec. 2(c) at 8799.

8

70. Section 3 of the Executive Order is titled “Definitions,” but contains no specific

9 definitions applicable to the order. Id. Sec. 3 at 8799. Instead, it states that “the terms of this

10 order, where applicable, shall have the meaning provided by” 8 U.S.C. § 1101. Id.

11

71. In a sharp break with past practice, Section 5 of the Executive Order expands the

12 federal government’s immigration enforcement priorities well beyond any threshold needed to

13 protect public safety. Section 5 calls upon the Department of Homeland Security to “prioritize

14 for removal those aliens” who are removable on a large number of grounds, including that they:

15

i) have criminal charges that have not been resolved;

16

ii) “have committed acts that constitute a chargeable criminal offense” even if

17 no charges have been filed;

18

iii) are arriving without prior admission (e.g., asylum-seekers);

19

iv) have “abused any program related to receipt of public benefits”; or

20

v) “otherwise pose a risk to public safety or national security” in the judgment

21 of “an immigration officer,” not an immigration judge. Executive Order, Sec. 5 at 8800.

22

72. These vague categories sweep in millions of individuals who have not been

23 convicted of any criminal offense, let alone a serious or violent one. For example, “acts that

24 constitute a chargeable criminal offense” could include a wide range of ordinary and

25 nonthreatening conduct. Leaving unbridled discretion in the hands of immigration officers to

26 brand individuals as “criminals” or “risks to public safety or national security”—without any

27 clear standards or criteria—raises serious due process concerns.

28

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1

73. Section 6 of the Executive Order is equally vague and subject to arbitrary and

2 discriminatory enforcement. Section 6 purports to impose “fines and penalties” upon not only 3 “aliens unlawfully present in the United States,” but also upon “those who facilitate their 4 presence in the United States.” Executive Order, Sec. 6 at 8800 (emphasis added). This

5 undefined phrase could result in attempts by the executive branch to impose penalties upon

6 County employees who provide essential or even lifesaving services to immigrants who are

7 unlawfully present; their friends and family members; churches and other religious organizations

8 that assist them; landlords, co-workers, or employers; or even attorneys who represent them in

9 immigration proceedings.

10 2. Section 9 of the Executive Order purports to vest the President with

11

legislative powers that even Congress does not lawfully possess.

12

74. Section 9 of the Executive Order concerns the so-called “Sanctuary Jurisdictions”

13 that are the subject of the order, as noted in Section 1. The Executive Order includes no clear

14 definition of that phrase, nor is that phrase defined in 8 U.S.C. § 1101.

15

75. Section 9(a) purports to vest executive branch officials with broad authority and

16 unlimited, unreviewable discretion to deny federal funds to whichever jurisdictions they deem to

17 be Sanctuary Jurisdictions, and to take unspecified enforcement action against them. It begins

18 with an unconstitutional provision allowing the executive branch to strip federal funding from

19 such purported Sanctuary Jurisdictions:

20

[T]he Attorney General and the Secretary [of Homeland Security], in their

discretion and to the extent consistent with law, shall ensure that jurisdictions that

21

willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

eligible to receive Federal grants, except as deemed necessary for law enforcement

22

purposes by the Attorney General or the Secretary. The Secretary has the authority

to designate, in his discretion and to the extent consistent with law, a jurisdiction

23

as a sanctuary jurisdiction.

24 Executive Order, Sec. 9(a) at 8801 (the “Defunding Provision”).

25

76. The Defunding Provision places entirely new and amorphous conditions on

26 jurisdictions, like the County, which rely on federal funds to provide services to their residents.

27 Under the Executive Order, if the Attorney General and Secretary of Homeland Security

28 determine (in their unbounded discretion) that a jurisdiction is “willfully refus[ing] to comply

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with 8 U.S.C. 1373,” then those jurisdictions will be rendered “not eligible to receive Federal grants.”5 Id.
77. Section 1373 provides, inter alia, that local governments may not prohibit or
restrict “any government entity or official from sending to, or receiving from, the Immigration
and Naturalization Service information regarding the citizenship or immigration status . . . of any
individual.” 8 U.S.C. § 1373(a). It further forbids any person or agency from prohibiting or
restricting any government entity from sending, maintaining, or exchanging such information with federal immigration officials. Id. § 1373(b).6
78. The Defunding Provision includes no process or procedure by which a state or
local government may review, challenge, or even receive notice regarding its designation as a
“sanctuary jurisdiction.”
79. The Defunding Provision makes no mention of any statutory authority for the new
conditions it imposes on the affected jurisdictions. Indeed, it makes no reference to Congress or
Congressional action whatsoever. Rather, it grants the power to impose the new conditions—as
well as to determine if those conditions have been met and to deny funding on that basis—solely
to executive branch officials.
80. The Defunding Provision is incredibly broad. On its face, it appears to apply to
existing and expected federal funds. It makes no distinction between block grants provided to
states or municipalities, funds disbursed as reimbursements for previous or expected
expenditures, funds disbursed under a fee-for-service model, or funds provided to state and local
governments through entitlements such as Medicare or Medicaid.
81. Section 9(c) of the Executive Order makes clear that the Defunding Provision is
intended to apply to all federal funds. Section 9(c) orders the Director of the Office of 5 Because the phrase “Federal grant” is nowhere defined in the Executive Order, the County must interpret that phrase to apply to all federal funds, whatever their source. This interpretation is consistent with the President’s statements regarding his desire to cut off taxpayer funds to state and local governments he considers to be “sanctuary jurisdictions.” See infra ¶¶ 91–95. 6 The federal government has expanded on its view of what Section 1373 requires through various memoranda and guidance documents. See, e.g., Horowitz Memo; Office of Justice Programs, Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t of Justice (July 7, 2016); Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just. (October 6, 2016).
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1 Management and Budget “to obtain and provide relevant and responsive information on all 2 Federal grant money that currently is received by any sanctuary jurisdiction.” Executive Order,

3 Sec. 9(c) at 8801 (emphasis added). On its face, the order targets “all” federal funds, whatever

4 their source, and includes funds that affected jurisdictions—including the County—have

5 “currently received.” Id. It is therefore unbounded in both scope and time. Furthermore, the

6 notion that the federal government may, pursuant to this order, attack County funds retroactively

7 is no hypothetical scenario. For each type of funding the County receives, the federal government

8 may attempt to claw back those funds.

9

82. By executive fiat, the Defunding Provision imposes new funding conditions that

10 Congress could not constitutionally have imposed. The Defunding Provision applies to all

11 “Federal grants,” regardless of whether those grants have any connection, relation, or nexus to

12 immigration. Executive Order, Sec. 9(a) at 8801. Such an untethered condition far exceeds

13 Congress’s power under the Spending Clause.

14

83. The order provides a mechanism by which certain monies “deemed necessary for

15 law enforcement purposes” may be exempted from the blanket Defunding Provision. Id. That

16 exemption gets the law exactly backwards, because funds related to law enforcement bear at least

17 some connection to compliance with 8 U.S.C. § 1373, and are arguably the only funds that

18 Congress could conceivably have tied to such compliance in a constitutional manner. See S.

19 1640, 114th Cong. § 114(d) (2015); H.R. 1148, 114th Cong. § 114(d) (2015). But Congress has

20 never imposed any such restriction, and in fact has specifically considered and rejected similar

21 restrictions. See id.

22

84. By threatening all of a jurisdiction’s federal funding, the Defunding Provision goes

23 beyond encouragement and becomes unduly coercive. It is, in effect, “a gun to the head.” Nat’l

24 Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2604 (2012). The point of the threat

25 is to compel each affected jurisdiction to “adopt a federal regulatory system as its own,” which is

26 “contrary to our system of federalism.” Id.

27

85. The new spending conditions are also constitutionally infirm. Section 1373 itself

28 raises a host of constitutional issues, particularly under the Tenth Amendment. And to the extent

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1 that the executive branch determines that compliance with 8 U.S.C. § 1373 requires jurisdictions

2 to detain individuals who would otherwise be released from custody, the Executive Order forces

3 jurisdictions to violate the Fourth, Eighth, and Fourteenth Amendment rights of individuals

4 within those jurisdictions, thereby risking civil liability, including personal liability against

5 individual law enforcement officers.

6

86. The Executive Order not only claims the power to strip affected jurisdictions of the

7 federal funding they rely on to govern, but also promises unspecified enforcement action against

8 those jurisdictions:

9

The Attorney General shall take appropriate enforcement action against any entity

that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that

10

prevents or hinders the enforcement of Federal law.

11 Executive Order, Sec. 9(a) at 8801 (the “Enforcement Provision”).

12

87. Like the Defunding Provision, the Enforcement Provision is both extremely broad

13 and entirely vague in its wording. It promises enforcement action against any jurisdiction that

14 “prevents or hinders the enforcement of Federal law.” Id. By its terms, this provision applies to

15 all federal law—all 54 titles of the U.S. Code, and presumably the entire Code of Federal

16 Regulations to boot. Nor is it limited to violations of federal law; it targets any jurisdiction that

17 has a “statute,” “policy,” or “practice” that simply “hinders” enforcement of those laws. The

18 Enforcement Provision does not define what “hinders” means, vesting entirely in the executive

19 branch the power to make that determination and offering no judicial review or other recourse to

20 any jurisdiction deemed to have violated it.

21

88. Taken at face value, the Enforcement Provision reworks the entire structure of our

22 federal republic, granting the federal executive branch untrammeled discretion to punish state and

23 local governments for taking any action—or simply having a policy or practice—that the federal

24 government finds inconvenient. The Enforcement Provision thus violates the anti-

25 commandeering aspect of the Tenth Amendment, as well as federalism principles more generally.

26

89. The Executive Order makes no attempt to ground the vast new authority it seizes

27 for the executive branch in any specific constitutional or statutory authority. The only sources of

28 authority President Trump has claimed for the sweeping and unprecedented order are “the

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1 authority vested in me as President by the Constitution and laws of the United States of America,

2 including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.),” as well as “Article

3 II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code.”

4 Executive Order, Secs. 1, 2 at 8799.

5

90. None of these cited provisions grants the President any of the powers he has taken

6 for his own. Justifying itself by reference to the “authority vested” in the President by the

7 Constitution and federal law, the Executive Order begs the question of whether the President has

8 such authority in the first place. The INA says nothing about withdrawing or restricting federal

9 funds from jurisdictions that fail to comply with 8 U.S.C. § 1373, or imposing “appropriate

10 enforcement action” against certain jurisdictions. Indeed, the phrase “sanctuary jurisdiction” is

11 found nowhere in the Act. Article II, Section 3 of the Constitution is the “Take Care” clause,

12 which by its terms requires the President to follow and execute the law Congress enacted, not to

13 seize legislative power for himself. That clause has never been interpreted to allow the power

14 grab the President is attempting here. And 5 U.S.C. § 3331 is the oath of office every federal

15 official—except the President—takes when appointed to a federal office. The oath provides no

16 independent authority for the powers claimed by the Executive Order.

17 3. The President’s and his subordinates’ statements reveal the Executive

18

Order’s unconstitutionally broad scope.

19

91. The Executive Order contains a few vague caveats indicating that it will, in part,

20 be applied “to the extent consistent with law” (a caveat noticeably absent from the Enforcement

21 Provision). See Executive Order, Sec. 9 at 8801. But the President’s and his subordinates’ own

22 statements belie that blithe assurance. On the contrary, there is no indication that the executive

23 branch understands, respects, or has any intention to interpret or enforce the Executive Order

24 consistent with governing law and well-established constitutional limitations.

25

92. The President’s own statements—and those of other officials in his

26 administration—reveal that the executive branch intends the Executive Order to go far beyond

27 current law. Indeed, the President has repeatedly promised, both on the campaign trail and once

28 elected, that his goal is not to use the spending power (which is not his, in any event) to

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1 encourage jurisdictions to cooperate with his federal immigration program. Rather, he proposes

2 to deny all federal funding to jurisdictions he believes are failing to comply with federal

3 immigration laws, “ending” them altogether. That approach is undoubtedly unconstitutional,

4 however implemented.

5

93. The President’s and his aides’ statements unambiguously point to a broad, and

6 therefore unconstitutional, interpretation of the Executive Order. For instance:

7

i) On August 31, 2016, then-candidate Donald J. Trump issued an “Address

8 on Immigration,” which included a heading entitled “Block Funding for Sanctuary Cities.”

9 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

10 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration. Mr.

11 Trump stated, “We will end the Sanctuary Cities that have resulted in so many needless deaths. 12 Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars, and we

13 will work with Congress to pass legislation to protect those jurisdictions that do assist federal

14 authorities.” Id. (emphasis added).

15

ii) On January 25, 2017—the day on which the President issued the Executive

16 Order—the President’s press secretary, Sean Spicer, made clear that the order targets all federal 17 funding: “We are going to strip federal grant money from the sanctuary states and cities that 18 harbor illegal immigrants. The American people are no longer going to have to be forced to

19 subsidize this disregard for our laws.” White House, 1/25/17: White House Press Briefing,

20 YouTube (Jan. 25, 2017), https://www.youtube.com/watch?v=OaPriMVvtZA (begin at 3:57

21 mark) (emphasis added).

22

iii) On January 26, 2016, President Trump reiterated his plan to target

23 sanctuary jurisdictions during remarks at the Congressional Republican Retreat: “And finally, at 24 long last, cracking down on sanctuary cities. It’s time to restore the civil rights of Americans, to

25 protect their jobs, their hopes and their dreams for a much better future.” Donald J. Trump,

26 President Trump Remarks at Congressional Republican Retreat, C-Span (Jan. 26, 2017),

27 https://www.c-span.org/video/?422829-1/President-trump-tells-congressional-republicans-now-

28 deliver (begin at 13:54 mark) (emphasis added).

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1

iv) On January 28, 2017, the White House issued a press release stating,

2 “President Trump signed an executive order to ensure that immigration laws are enforced 3 throughout the United States, including halting federal funding for sanctuary cities.” Press

4 Release, The White House, Office of the Press Secretary, President Trump’s First Week of Action

5 (Jan. 28, 2017), https://www.whitehouse.gov/the-press-office/2017/01/28/President-trumps-first-

6 week-action (emphasis added).

7

v) That same day, the President stated, “Here are just a few of the executive

8 actions that I have taken in the last few days . . . . An order to immediately begin the border wall 9 and to crack down on sanctuary cities. They are not safe, we have to take care of that horrible

10 situation.” Press Release, The White House, Office of the Press Secretary, President Trump’s

11 First Weekly Address (Jan. 28, 2017), https://www.whitehouse.gov/the-press-

12 office/2017/01/28/President-trumps-first-weekly-address (emphasis added).

13

vi) The White House’s public website likewise states that President Trump “is

14 dedicated to enforcing our border laws, ending sanctuary cities, and stemming the tide of

15 lawlessness associated with illegal immigration.” The White House, Standing Up For Our Law

16 Enforcement Community, https://www.whitehouse.gov/law-enforcement-community (last

17 accessed on February 1, 2017) (emphasis added).

18

vii) Mr. Spicer, the President’s press secretary, reiterated this goal on February

19 1, 2017, stating in a press briefing, “I think the President’s goal in ending sanctuary cities is

20 pretty clear. . . . [T]he President has been very clear through his executive order that federal

21 funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary cities.”

22 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press Secretary

23 Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/the-press-

24 office/2017/02/01/press-briefing-press-secretary-sean-spicer-212017-6 (emphases added).

25

94. The Executive Order itself confirms the sweeping scope outlined by the President

26 and his aides. It cannot refer merely to existing executive power to limit spending; if that is all

27 the order accomplishes, then it is superfluous. There would be no need to order what the

28 President may already accomplish through existing statutory authorization.

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1

95. In addition to comments regarding the Executive Order, the President’s more

2 recent statements reveal a complete lack of understanding of, and respect for, the boundaries

3 between executive and legislative powers. For example, commenting on reports of violent

4 protests at U.C. Berkeley in response to a planned speaking event, the President tweeted, “If U.C.

5 Berkeley does not allow free speech and practices violence on innocent people with a different

6 point of view – NO FEDERAL FUNDS?” @realDonaldTrump, Twitter (Feb. 2, 2017, 3:13 AM),

7 https://twitter.com/realDonaldTrump/status/827112633224544256 (last accessed Feb. 2, 2017).

8 The President seems to hold the misimpression that the executive branch controls the power of

9 the purse, and that he can simply turn off the federal funding spigot to states, local governments,

10 and other publicly funded entities he disfavors. The Founders drafted and designed our

11 Constitution to avoid precisely this result.

12 C. Congress Considered and Rejected Conditioning Federal Law Enforcement

13

Funds on Compliance with Section 1373.

14

96. The Executive Order not only claims legislative power in excess of what the

15 Constitution grants to Congress, but it also represents an attempt to enact a policy that Congress

16 has already expressly considered and rejected. In fact, one of the individuals who will likely be

17 tasked with implementing and enforcing the Executive Order is the same person who tried and

18 failed to persuade Congress to enact the policy the executive branch is now imposing by dictate:

19 Jeff Sessions.

20

97. On June 22, 2015, Senator Jeff Sessions—now the President’s nominee for

21 Attorney General of the United States—introduced a bill in the United States Senate. The bill, S.

22 1640, is entitled the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law

23 Enforcement Act,” and is attached hereto as Exhibit B. Senator Sessions’s bill sought to tie

24 certain federal funds to compliance with 8 U.S.C. § 1373. S. 1640, 114th Cong. (2015). That is

25 the same power, on a narrower scale, the President now claims.

26

98. Only seven Senators co-sponsored Mr. Sessions’s bill, which died in the Senate

27 Judiciary Committee.

28

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99. Senator Sessions’s bill had a counterpart in the United States House of
Representatives. There, U.S. Representative Trey Gowdy introduced H.R. 1148, entitled the
“Michael Davis, Jr. in Honor of State and Local Law Enforcement Act.” H.R. 1148, 114th
Cong. (2015). The House bill is attached hereto as Exhibit C. Only 50 House Members co-
sponsored Mr. Gowdy’s bill, which was reported out of the House Judiciary Committee, but
languished in the Committee on Homeland Security. It never received a vote on the floor of the
House.
100. Senator Sessions’s unsuccessful legislation, as well as its companion bill in the
House, was a narrower version of the sweeping Executive Order the President issued after
nominating Mr. Sessions to be his Attorney General. Its declared purpose was to “amend the
Immigration and Nationality Act to improve immigration law enforcement within the interior of
the United States.” S. 1640, 114th Cong. (2015). Section 114 of the bill, entitled, “State
Violations of Enforcement of Immigration Laws,” proposed an amendment to 8 U.S.C. § 1373
that is strikingly similar to the Executive Order Mr. Sessions will enforce if he is confirmed as the
Attorney General. Section 114(d) provided as follows:
“(d) Compliance.—
“(1) IN GENERAL.—A State, or a political subdivision of a State, that has in effect a statute, policy, or practice that prohibits law enforcement officers of the State, or of a political subdivision of the State, from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the officers’ routine law enforcement duties shall not be eligible to receive—
“(A) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or the ‘Cops on the Beat’ program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.); or
“(B) any other law enforcement or Department of Homeland Security grant.
“(2) ANNUAL DETERMINATION.—The Secretary shall determine annually which State or political subdivision of a State are not in compliance with this section and shall report such determinations to Congress on March 1 of each year.
“(3) REPORTS.—The Attorney General shall issue a report concerning the compliance of any particular State or political subdivision at the request of the House or Senate Judiciary Committee. Any jurisdiction that is found to
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be out of compliance shall be ineligible to receive Federal financial assistance as provided in paragraph (1) for a minimum period of 1 year, and shall only become eligible again after the Attorney General certifies that the jurisdiction is in compliance. S. 1640, 11th Cong. § 114(d) (2015).7
101. Shortly after introducing his bill in the U.S. Senate, Mr. Sessions issued a press release calling on Congress to pass a law restricting federal funds to sanctuary cities—the very authority the President now claims as his own. Senator Sessions said: “I am calling today on Congress to make its first item of business the immediate passage of legislation to cut off relevant federal monies to sanctuary cities.” News Release, Office of Senator Jeff Sessions, Senator Sessions Calls on Congress to Take Up Immigration Reform for Americans (July 9, 2015), http://www.sessions.senate.gov/public/index.cfm/2015/7/senator-sessions-calls-oncongress-to-take-up-immigration-reform-for-americans (emphasis added).
102. Two aspects of Senator Sessions’s statement bear emphasizing, and each of them demonstrates the unconstitutionality of the Executive Order Mr. Sessions will be charged with implementing if he is confirmed as Attorney General. First, Senator Sessions is flatly admitting that current law does not allow funds to be “cut off” from sanctuary jurisdictions. As Senator Sessions understood, new legislation would be needed to accomplish that objective. Second, Senator Sessions is recognizing that only “relevant federal monies” may be conditioned on compliance with certain immigration laws. Id. (emphasis added). Senator Sessions did not call on Congress to render sanctuary jurisdictions ineligible from receiving all federal grants, whether or not those grants were germane to immigration or law enforcement, because such a law would be patently unconstitutional.
103. Despite Senator Sessions’s exhortation, Congress never enacted his proposed bill, which would have cut off certain federal funding to state and local governments deemed insufficiently compliant with federal immigration directives. In fact, the precise opposite is true:
7 The companion House bill, H.R. 1148, contained an identical provision. See H.R. 1148, 114th Cong. § 114(d) (2015).
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both houses of Congress have independently and expressly considered and rejected the policy that
the President and Mr. Sessions now claim for the executive branch by fiat.
104. The similarities between Senator Sessions’s failed bill and the Executive Order are striking, and likely not coincidental.8 The two documents share common phrases nearly
verbatim, targeting any jurisdiction that “has in effect a statute, policy, or practice” that the
federal government finds problematic. They both declare that such jurisdictions shall not be
“eligible to receive” federal funds. And they both vest in the Secretary of Homeland Security the
ability to designate certain jurisdictions as noncompliant. They also both contemplate the
Attorney General publishing a report listing jurisdictions that the Attorney General has deemed
noncompliant.
105. The differences between the failed bill and the Executive Order are also telling.
The bill appears to have made at least some effort to conform to constitutional limitations on
Congress’s spending power. For example, the bill tied only certain law-enforcement-related
funds to the proposed funding condition, signaling out “Cops on the Beat” funds, and other law
enforcement or Department of Homeland Security grants. S. 1640, 114th Cong. § 114(d)(1)(A-
B). That limitation stands in stark contrast to the Executive Order, which renders affected
jurisdictions ineligible to receive all “Federal grants.” Executive Order, Sec. 9(a) at 8801. The
failed bill also vested the Secretary of Homeland Security with primary authority for
implementing the legislation. By contrast, the Executive Order vests the Attorney General—
presumably Mr. Sessions—as well as the Secretary with ensuring fund ineligibility. Id.
106. The President’s attempt to secure by executive fiat what Senator Sessions failed to
win through the legislative process violates the separation of powers principles that undergird our
8 Media reports confirm that Senator Sessions played a prominent role in the executive orders that the President issued during his first week in office. One article states that Senator Sessions was the “intellectual godfather” of Mr. Trump’s executive orders, and that his longtime chief of staff, along with one of his mentees, drafted the orders. See Philip Rucker & Robert Costa, Trump’s Hard-Line Actions Have an Intellectual Godfather: Jeff Sessions, Wash. Post, Jan. 30, 2017. Indeed, administration officials have stated that Senator Sessions “helped devise the President’s first-week strategy, in which Trump signed a blizzard of executive orders that begin to fulfill his signature campaign promises — although Sessions had advocated going even faster.” Id. According to the reports, Senator Sessions “lobbied for a ‘shock-and-awe’ period of executive action that would rattle Congress, impress Trump’s base and catch his critics unaware.” Id.
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1 system of government. As Justice Jackson stated in his seminal concurrence in Youngstown,

2 “When the President takes measures incompatible with the expressed or implied will of Congress,

3 his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus

4 any constitutional powers of Congress over the matter.” 343 U.S. at 637 (Jackson, J.,

5 concurring). In issuing the Executive Order, the President operated at his lowest ebb of power,

6 since Congress had already expressed its will by considering and rejecting the very powers the

7 President has claimed for himself with the stroke of a pen.

8

D. The County Requires Immediate Relief.

9

107. The County has standing to challenge the Executive Order and its claims are ripe

10 for adjudication today.

11

108. The County has suffered an injury-in-fact. As set forth above, the County receives

12 approximately $1 billion in federal funding per year, which amounts to more than 15% of its total

13 budget. The Executive Order purports to strip away all of this federal funding, decimating the

14 County’s ability to provide basic services to its residents. The “loss of funds promised under

15 federal law” is a quintessential economic injury that “satisfies Article III’s standing requirement.”

16 See Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015) (en banc),

17 cert. denied sub nom. Alaska v. Organized Vill. of Kake, Alaska, 136 S. Ct. 1509 (2016).

18

109. Furthermore, the Executive Order applies to, and purportedly would bar the

19 County from receiving, federal funds to reimburse the County for established programs and 20 services that the County is currently providing, and for which Congress has already approved

21 funding. The County is an eligible recipient of, expects to receive, and has made budgeting,

22 programming, and hiring decisions based on these prior congressional funding decisions. Now,

23 the Executive Order purports to require retroactive imposition of the condition that municipalities

24 comply with federal immigration provisions to already-approved funds. This is precisely the sort

25 of “substantial contingent liability” that confers standing because it “immediately and directly

26 affects the borrowing power, financial strength, and fiscal planning” of the County. See Clinton

27 v. City of N.Y., 524 U.S. 417, 430-31 (1998).

28

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1

110. The County’s injuries are “actual or imminent.” Susan B. Anthony List v.

2 Driehaus, 134 S. Ct. 2334, 2341 (2014) (quotations omitted). The County has already suffered

3 harm as a result of the Executive Order, and its injuries will only continue to grow unless the

4 Executive Order is declared unlawful and its implementation enjoined. Indeed, the Executive

5 Order has thrown the County’s ongoing budgeting process into chaos, forcing the County to

6 choose whether to continue incurring hundreds of millions of dollars in costs that may never be

7 reimbursed or discontinue providing basic safety-net services to its most vulnerable residents.

8 And, because the County’s federally funded programs operate continuously, the County is

9 currently spending millions of dollars that may never be reimbursed by the federal government

10 pursuant to the Executive Order.

11

111. Furthermore, Defendants have made clear that their express purpose in adopting

12 the Executive Order is to “[h]alt federal funding for,” “strip federal grant money from,” and

13 “crack down on” municipalities, like the County of Santa Clara, which do not comply with

14 federal directives, as purportedly required by the Executive Order. See supra ¶¶ 91–95.

15

112. Given the County’s policies described above, and Defendants’ repeated threats to

16 pull federal funding from jurisdictions that refuse to carry out the commands of federal

17 immigration officials, there is a “credible threat” that Defendants will seek to enforce the

18 unconstitutional Executive Order against the County. See Susan B. Anthony List, 134 S. Ct. at

19 2342 (collecting cases). The County is not required to “expose [itself] to liability before bringing

20 suit to challenge the basis for [Defendants’] threat.” MedImmune, Inc. v. Genentech, Inc., 549

21 U.S. 118, 128–129 (2007).

22

113. The County’s injuries are “fairly traceable to the challenged action”—in fact, they

23 are directly caused by the Executive Order. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

24 Inc., 528 U.S. 167, 180 (2000). But for the Executive Order, the County would continue to receive

25 federal funds for programs and services that it currently provides, and would be able to make

26 budgeting and programming decisions without the threat that its federal funds will disappear.

27

114. The Court can redress the County’s injuries by declaring the Executive Order

28 unconstitutional and enjoining its implementation and enforcement.

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1

115. The issues in this case are fit for judicial decision. The Executive Order is final

2 and the County’s challenge to that Order presents legal issues that “will not be clarified by further

3 factual development.” Susan B. Anthony List, 134 S. Ct. at 2347 (quotations omitted).

4

116. Postponing judicial review would impose a significant hardship on the County.

5 Requiring the County to “proceed without knowing whether the [Executive Order] is valid would

6 impose a palpable and considerable hardship” by forcing the County to decide now whether to

7 continue providing essential safety-net services to its residents, without knowing that it will

8 recoup the promised federal funding. Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568,

9 581 (1985) (quoting Pac. Gas & Elec. Co. v. State Energy Resources Conservation and

10 Development Comm’n, 461 U.S. 190, 201 (1983)).

11

117. In light of this substantial and imminent constitutional injury, the County is left

12 with no choice but to seek immediate judicial relief, including a preliminary and permanent

13 injunction.

14

CLAIMS FOR RELIEF

15

COUNT 1

16

Violation of the Separation of Powers Inherent in the U.S. Constitution

17

118. The County incorporates and re-alleges each and every allegation contained above

18 as if fully set forth herein.

19

119. Sixty-five years ago, in the midst of the Korean War, our Supreme Court held that

20 the power of the President, “if any,” to issue executive orders “must stem either from an act of

21 Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585. Accordingly, an

22 executive order lacking congressional or constitutional authority is unconstitutional.

23

120. Furthermore, “[w]hen the President takes measures incompatible with the

24 expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only

25 upon his own constitutional powers minus any constitutional powers of Congress over the

26 matter.” Id. at 637 (Jackson, J., concurring) (adopted in Dames & Moore v. Regan, 453 U.S. 654,

27 669 (1981)).

28

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1

121. Article I of the Constitution vests the federal government’s spending power

2 exclusively in Congress. See U.S. Const. art. I, § 8, cl. 1. By contrast, nothing in the

3 Constitution’s text, or in more than two centuries of judicial decisions interpreting the

4 Constitution, purports to confer on the President or the executive branch any power either to

5 dictate government spending or to place conditions or limits on the spending power that is vested

6 in the legislative branch. Those powers reside solely with Congress.

7

122. Although the Constitution vests the spending power exclusively in Congress, it

8 does not confer unlimited discretion on the legislative branch when that branch seeks to place

9 conditions on federal spending directed to states and local governments. As the Supreme Court

10 held in South Dakota v. Dole, 483 U.S. 203, 207 (1987), “[t]he spending power is of course not

11 unlimited.” In its Dole decision, the Court identified and explained particular limits on

12 Congress’s power to spend. Subsequent cases have given further definition to those limits.

13

123. First, as the words of the Constitution make clear, any “exercise of the spending

14 power must be in pursuit of ‘the general welfare.’” Dole, 483 U.S. at 207.

15

124. Second, if Congress wishes to place certain conditions on federal funds, “it must

16 do so unambiguously,” so that states and local governments may “exercise their choice

17 knowingly, cognizant of the consequences of their participation.” Id. (internal quotation marks

18 omitted). Accordingly, Congress may not surprise a state or local government by initially

19 approving spending unconditionally, then later imposing a condition on receipt of those funds.

20 See NFIB, 132 S. Ct. at 2602–04. As the Court explained in NFIB, “[w]e have repeatedly

21 characterized … Spending Clause legislation as much in the nature of a contract.” Id. at 2602

22 (internal quotation marks omitted) (emphasis in original). Under this framework, “[t]he

23 legitimacy of Congress’s exercise of the spending power thus rests on whether the state

24 voluntarily and knowingly accepts the terms of the contract” at the time Congress offers the

25 money. Id. (internal quotation marks omitted).

26

125. Third, the Supreme Court has “repeatedly said that Congress may condition grants

27 under the spending power only in ways reasonably related to the purpose of the federal program”

28

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1 at issue. Dole, 483 U.S. at 213. In other words, Congress may not burden the payment of funds

2 to a state or municipality for one purpose with a condition that serves a different federal interest.

3

126. Fourth, a conditional grant of federal funds may be barred if it would violate some

4 independent constitutional provision. Id. at 208. For example, Congress could not condition

5 federal grants on a municipality’s agreement to perform unlawful searches and seizures in

6 violation of the Fourth Amendment.

7

127. Fifth, “in some circumstances the financial inducement offered by Congress might

8 be so coercive as to pass the point at which ‘pressure turns to compulsion.’” Dole, 483 U.S. at

9 211 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). Congress may not

10 constitutionally “force the States to implement a federal program,” NFIB, 132 S. Ct. at 2602, and

11 may not end-run this limitation by imposing conditions on federal spending that are so draconian

12 that they amount to “a gun to the head” leaving the state or municipality no realistic choice but to

13 comply. Id. at 2604.

14

128. Section 9(a) of the Executive Order violates most, if not all, of the constitutional

15 principles and binding precedents outlined above.

16

129. The Executive Order claims the power to establish conditions governing federal

17 spending—which Congress has declined to impose through legislation—and to direct subordinate

18 executive branch officials to restrict eligibility for federal spending without statutory authority to

19 do so. Such powers lie beyond the President’s constitutional authority. They claim for the

20 executive branch powers exclusively assigned to Congress under the Spending Clause, U.S.

21 Const. art. I, § 8, cl. 1.

22

130. To the extent the President is purporting to impose any conditions or limitations on

23 federal spending, or to direct subordinate executive branch officials to do the same, without

24 express statutory authority, the Executive Order also unlawfully exceeds the President’s powers

25 under other provisions of the Constitution that establish the separation of powers among the

26 branches of our government, including:

27

i) the President’s obligation to “take Care that the Laws be faithfully executed,”

28

U.S. Const. art. II, § 3, cl. 5 (Take Care Clause); and

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ii) the limitation that Congressional enactments must “be presented to the
President of the United States,” who then may sign that enactment or veto it,
but has no power to merely revise it, either upon presentment or after
enactment, U.S. Const. art. I, § 7, cls. 2-3 (Presentment Clause).
131. The Executive Order not only attempts to commandeer Congress’s spending
power, but it also establishes conditions on federal spending that even Congress could not
constitutionally impose. In other words, the President has claimed powers over federal spending
that even Congress does not possess, and could therefore never delegate. For example:
i) The Defunding Provision makes no distinction between federal funding
already approved by Congress and funding to be approved in the future, and
thus applies equally to both categories. But Congress, let alone the President,
could not impose a condition on federal spending retroactively.
ii) The Defunding Provision applies to all federal funding related to any subject.
It is not restricted to funding related to a legitimate federal interest in
enforcement of immigration laws by municipalities. But the Constitution
requires that any federal funding conditions Congress imposes must be
reasonably related to the federal interest to which the expenditure relates (the
“Dole nexus test”). The Executive Order fails that test utterly: the Defunding
Provision applies to, and would bar the County from being eligible for funding
for, Medicare and Medicaid programs, transportation, child welfare services,
elder care programs, mental health services, immunization and vaccine
programs, and a myriad of other programs and services that have absolutely
nothing to do with the enforcement of federal immigration laws by state or local governments. See supra ¶¶ 27–45.9 9 The Defunding Provision not only fails the Dole nexus test—it gets it exactly backwards. It contains only one possible exception, for funding “deemed necessary for law enforcement purposes,” which the Attorney General or Secretary of Homeland Security discretionarily allow to be remitted. These are the sorts of funds that might have withstood constitutional scrutiny had Congress passed them (and indeed, Congress considered such restrictions and declined to impose them, see S. 1640, 114th Cong. § 114(d) (2015)). The Executive Order threatens all funding unrelated to law enforcement, while paradoxically allowing a mechanism by which relevant funding may escape the ban.
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iii) The Executive Order requires County law enforcement officers to undertake actions that are themselves unconstitutional. For example, the Executive Order’s text, as well as the President’s statements, indicate that he interprets the Executive Order to require County law enforcement officers to comply with federal directives regarding detainer actions by U.S. Immigration & Customs Enforcement. Courts across the country have already determined that these directives violate the Fourth Amendment. If County law enforcement personnel are obligated to violate the Fourth Amendment in order to receive the federal funds they rely upon to provide services, County personnel would subject themselves to personal liability (including punitive damages), and potentially subject the County to municipal liability, under 42 U.S.C. § 1983 and related federal civil rights laws.
iv) The new funding conditions the Executive Order imposes are profoundly coercive to the County. Affecting all federal funds, the conditions go far beyond the potential withdrawal of Medicaid funds, which the Supreme Court described as an unconstitutional “gun to the head” in NFIB. As set forth above, the County receives about $1 billion in federal funding per year, amounting to approximately 15% of its total budget. If the President makes good on his threat to strip all of this federal funding away, it would decimate the County’s ability to provide basic services, including health care, to its residents. Furthermore, unlike the congressional enactment in NFIB, which permitted withdrawal of Medicaid funding if the Secretary of Health and Human Services so decided, the Executive Order here unambiguously requires the Attorney General and the Secretary of Homeland Security to “ensure that jurisdictions” refusing the condition “are not eligible to receive Federal grants.” In other words, the conditions the Executive Order imposes are not only broader in scope than the unconstitutional condition Congress imposed in NFIB, but they are also mandatory rather than permissive. 35
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1

132. Because the conditions in the Executive Order would be unconstitutional even if

2 imposed by Congress, it is no defense for the government to argue that Congress may have

3 delegated its Spending Clause authority to the President with respect to some or all of the federal

4 funds at issue. Plainly, Congress cannot delegate a power that it does not possess, so it could not

5 authorize the President to impose an unconstitutional condition on federal spending.

6

133. The County in no way concedes that any delegation of Congress’s power under the

7 Spending Clause is constitutionally permitted, or that Congress actually purported to delegate any

8 spending power to the President with respect to the particular federal programs and funds at issue

9 here. In any event, the conditions imposed by the Executive Order are ones that no branch of the

10 federal government has the power to impose, under settled United States Supreme Court

11 precedent.

12

134. For all these reasons, and as set forth elsewhere in this Complaint, section 9(a) of

13 the Executive Order is unlawful and unconstitutional because it violates the constitutional

14 separation of powers and the specific constitutional provisions identified herein.

15

COUNT 2

16

Violation of the Due Process Clause, Amend. 5 – Void for Vagueness

17

135. The County incorporates and re-alleges each and every allegation contained above

18 as if fully set forth herein.

19

136. Under the Fifth Amendment to the United States Constitution, a federal law is

20 unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what

21 is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory

22 enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

23

137. The constitutional vagueness standard applies with full force to executive orders.

24 See United States v. Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002). When an executive order

25 contains terms that are not “susceptible of a clear meaning,” nor “mitigate the vagueness of the

26 term by supplying any definition,” then the provision “lends itself to subjective interpretation”

27 and is unconstitutional. Humanitarian Law Project v. U.S. Dep’t of Treasury, 463 F. Supp. 2d

28 1049, 1070 (C.D. Cal. 2006).

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1

138. The Executive Order, which reads more like a slapdash press release than it does a

2 serious expression of federal policy, fails to satisfy this constitutional minimum. It fails to

3 provide fair notice of the conduct it requires from the County.

4

139. Section 9(a) of the Executive Order fails to define key terms, such as “sanctuary

5 jurisdiction,” “Federal grants,” “law enforcement purposes,” “appropriate enforcement action,”

6 and “entity,” as well as the all-important phrase “statute, policy, or practice that prevents or

7 hinders the enforcement of Federal law.” Executive Order, Sec. 9(a) at 8801. Having such a

8 “practice” subjects a jurisdiction to “enforcement action,” which could be draconian in nature. Id.

9 What such a practice might be is left undefined, and subject to the executive branch’s unbridled

10 discretion.

11

140. The Executive Order lends itself to subjective interpretation and discriminatory

12 enforcement; indeed, that seems to be its point. The order grants the Secretary of Homeland

13 Security unfettered discretion to designate a state or local government as a “sanctuary

14 jurisdiction” that is “not eligible to receive Federal grants.” Id. The order likewise grants the

15 Attorney General unfettered discretion to take “appropriate enforcement action” against any

16 “entity” that, in his estimation, violates 8 U.S.C. § 1373, or has a “statute, policy, or practice that

17 prevents or hinders the enforcement of Federal law.” Id. Such a vast, standardless, and

18 overbroad power invites arbitrary, subjective, and discriminatory enforcement.

19

141. Other portions of the Executive Order are equally vague. Section 6, for example,

20 requires assessment of “fines and penalties” against not only undocumented persons but also

21 anyone who “facilitate[s] their presence in the United States.” Id. Sec. 6 at 8800. It is unclear

22 what “facilitate” means in this context, and could apply to County employees who provide

23 undocumented persons with basic, safety-net services, landlords, employers, friends, family,

24 churches or non-profit organizations who assist undocumented persons, or even lawyers who

25 represent undocumented persons in immigration proceedings. Not only does this standardless

26 provision exceed the President’s authority by legislating through executive order, but it also

27 encourages and sanctions arbitrary, subjective, and discriminatory enforcement.

28

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1

142. For all these reasons, and as set forth elsewhere in this Complaint, the Executive

2 Order is unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause.

3

COUNT 3

4

Violation of the Due Process Clause, Amend. 5 – Procedural Due Process

5

143. The County incorporates and re-alleges each and every allegation contained above

6 as if fully set forth herein.

7

144. Under the Fifth Amendment to the United States Constitution, the federal

8 government may not deprive the County of money or property without “due process of law.”

9

145. The County has a constitutionally protectable property interest in the federal funds

10 it relies on to provide essential services to 1.9 million residents. The County’s property interest in

11 those federal funds is established and governed by rules and mutually explicit understandings

12 with the federal government.

13

146. Section 9(a) of the Executive Order deprives the County of its procedural due

14 process rights under the Fifth Amendment because it grants the Attorney General and Secretary

15 of Homeland Security unfettered discretion to deprive the County of all federal funds, with no

16 opportunity to review, challenge, or even obtain notice that the deprivation is coming.

17

147. Specifically, the Executive Order grants the Attorney General and Secretary of

18 Homeland Security unfettered discretion to “ensure” that certain jurisdictions “are not eligible to

19 receive Federal grants.” Executive Order, Sec. 9(a) at 8801. The order further grants those

20 executive branch officials unfettered discretion to designate a state or local government as a

21 “sanctuary jurisdiction” that may not receive federal funds. Id. The order likewise grants the

22 Attorney General unfettered discretion to take “appropriate enforcement action” against any

23 “entity” that, in his estimation, violates 8 U.S.C. § 1373, or has a “statute, policy, or practice that

24 prevents or hinders the enforcement of Federal law.” Id. The order provides no mechanism by

25 which a state or local government may review, challenge, or even obtain notice that it has been

26 designated a “sanctuary jurisdiction” ineligible for federal funds.

27

28

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148. Because the Executive Order deprives the County of a cognizable property interest while providing no notice, no pre-deprivation opportunity to be heard, and no post-deprivation opportunity to be heard, it violates the Fifth Amendment’s due process clause.
COUNT 4 Violation of the Tenth Amendment 149. The County incorporates and re-alleges each and every allegation contained above as if fully set forth herein. 150. Executive Order Section 9(a) provides that “The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Executive Order, Sec. 9(a) at 8801. 151. The Executive Order requires state and local jurisdictions to affirmatively assist federal immigration officials by, inter alia, complying, at their own expense, with ICE detainer requests. By demanding that state and local governments, including the County, imprison individuals subject to removal at the request of federal officials even if those individuals would otherwise be subject to release from County custody, the Executive Order commandeers state and local officials in furtherance of a federal regulatory program in violation of the Tenth Amendment to the United States Constitution. 152. The Executive Order also demands that state and local governments, including the County, take other unspecified actions to avoid “prevent[ing] or hinder[ing]” the federal government in the enforcement of “Federal law” more generally. Id. That directive transforms state and local officials into ancillary arms of the federal government, destroying the political accountability that drives our federal system. A more plain violation of the Tenth Amendment is difficult to fathom.
CONCLUSION 153. In Federalist No. 47, James Madison warned of the dangers inherent in “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands,” pronouncing it “the very definition of tyranny.” The Federalist No. 47 (James Madison). Mindful of the
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threat, he continued: “Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.” Id. Quoting Montesquieu, Madison focused on the particular dangers posed by an executive that claims for himself the legislative power: “When the legislative and executive powers are united in the same person or body . . . there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.” Id.
154. Capital lettering notwithstanding, Madison’s statement was no tweet. It describes a bedrock notion—the separation of powers—that lies at the very legal heart of our nation. And if the nation, and the Constitution that created it, are to endure, then that principle must yet have force. Executive Order 13768 is unconstitutional, and the courts must declare it so.
PRAYER FOR RELIEF WHEREFORE, Plaintiff County of Santa Clara respectfully requests that this Court enter judgment in its favor, and grant the following relief: 1. A declaration that Section 9 of the Executive Order is unconstitutional and invalid on its face; 2. A declaration that the Section 9 of the Executive Order is unconstitutional and invalid as applied to the policies and practices of the County; 3. A preliminary and permanent injunction enjoining Defendants from enforcing Section 9 of the Executive Order, or taking any other action in furtherance of any withholding or conditioning of federal funds based on the Executive Order; 4. A declaration that Section 6 of the Executive Order is unconstitutional and invalid on its face; 5. A declaration that Section 6 of the Executive Order is unconstitutional and invalid as applied to the policies and practices of the County; 6. A preliminary and permanent injunction enjoining Defendants from taking any action, or exercising any purported authority, against “those who facilitate [an alien’s] presence in
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1 the United States" pursuant to Section 6 of the Executive Order;

2

7. An award to the County ofreasonable costs and attorneys' fees; and

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8. Such other and further relief that this Court may deem fit and proper.

4 5
Dated: February 3, 2017 6 7 8 9 10 11 12 13

Respectfully submitted,
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA
By: JAMES R. WILLIAMS, County Counsel GRETA S. HANSEN DANIELLE GOLDSTEIN KAVITA NARAYAN JAVIER SERRANO JULIA SPIEGEL ADRIANA BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA

14 Dated: February 3, 2017
15

KEKER & VAN NEST LLP

16

By: /s/ John W. Keker

JOHN W. K R

17

ROBERT A. VANNEST

DANIEL PURCELL

18

CODY S. HARRIS

NICHOLAS S. GOLDBERG 19

Attorneys For Plaintiff COUNTY OF

20

SANTA CLARA

21

22

23

24

25
26

27
28

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Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation's immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.

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Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6, Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C.
1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuaiy Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as "Secure Communities" referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U S Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017-02102 Filed 1-27-17; 11:15 am] Billing code 3295—F7—P

THE WHITE HOUSE, January 25, 2017.

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EXHIBIT B

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114TH CONGRESS 1ST SESSION
S. 1640
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes.
IN THE SENATE OF THE UNITED STATES
JUNE 22, 2015
Mr. SESSIONS (for himself, Mr. COTTON, Mr. PERDUE, Mr. VITTER, and Mr. INHOFE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, SECTION 1. SHORT TITLE.
This Act may be cited as the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act”. SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title. Sec. 2. Table of contents.
TITLE I—IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES

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Sec. 101. Definitions and severability. Sec. 102. Immigration law enforcement by States and localities. Sec. 103. Listing of immigration violators in the national crime information center database. Sec. 104. Technology access. Sec. 105. State and local law enforcement provision of information about apprehended aliens. Sec. 106. Financial assistance to State and local police agencies that assist in the enforcement of immigration laws. Sec. 107. Increased Federal detention space. Sec. 108. Federal custody of inadmissible and deportable aliens in the United States apprehended by State or local law enforcement. Sec. 109. Training of State and local law enforcement personnel relating to the enforcement of immigration laws. Sec. 110. Immunity. Sec. 111. Criminal alien identification program. Sec. 112. Clarification of congressional intent. Sec. 113. State criminal alien assistance program (SCAAP). Sec. 114. State violations of enforcement of immigration laws. Sec. 115. Clarifying the authority of ICE detainers.
TITLE II—NATIONAL SECURITY
Sec. 201. Removal of, and denial of benefits to, terrorist aliens. Sec. 202. Terrorist bar to good moral character. Sec. 203. Terrorist bar to naturalization. Sec. 204. Denaturalization for terrorists. Sec. 205. Use of 1986 IRCA legalization information for national security purposes. Sec. 206. Background and security checks. Sec. 207. Technical amendments relating to the Intelligence Reform and Terrorism Prevention Act of 2004.
TITLE III—REMOVAL OF CRIMINAL ALIENS
Sec. 301. Definition of aggravated felony. Sec. 302. Precluding admissibility of aliens convicted of aggravated felonies or other serious offenses. Sec. 303. Espionage clarification. Sec. 304. Prohibition of the sale of firearms to, or the possession of firearms by, certain aliens. Sec. 305. Uniform statute of limitations for certain immigration, naturalization, and peonage offenses. Sec. 306. Conforming amendment to the definition of racketeering activity. Sec. 307. Conforming amendments for the aggravated felony definition. Sec. 308. Precluding refugee or asylee adjustment of status for aggravated felons. Sec. 309. Precluding withholding of removal for aggravated felons. Sec. 310. Inadmissibility and deportability of drunk drivers. Sec. 311. Detention of dangerous aliens. Sec. 312. Grounds of inadmissibility and deportability for alien gang members. Sec. 313. Extension of identity theft offenses. Sec. 314. Laundering of monetary instruments. Sec. 315. Penalties for illegal entry or presence. Sec. 316. Illegal reentry. Sec. 317. Reform of passport, visa, and immigration fraud offenses. Sec. 318. Forfeiture. Sec. 319. Expedited removal for aliens inadmissible on criminal or security grounds. Sec. 320. Increased penalties barring the admission of convicted sex offenders failing to register and requiring deportation of sex offenders failing to register. Sec. 321. Protecting immigrants from convicted sex offenders. Sec. 322. Penalties for failure to obey removal orders.

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TITLE IV—VISA SECURITY
Sec. 401. Cancellation of additional visas. Sec. 402. Visa information sharing. Sec. 403. Restricting waiver of visa interviews. Sec. 404. Non­interview of certain ineligible visa applicants. Sec. 405. Visa refusal and revocation. Sec. 406. Funding for the visa security program. Sec. 407. Expeditious expansion of visa security program to high­risk posts. Sec. 408. Expedited clearance and placement of Department of Homeland Security personnel at overseas embassies and consular posts. Sec. 409. Accreditation requirements. Sec. 410. Visa fraud. Sec. 411. Background checks. Sec. 412. Number of designated school officials. Sec. 413. Reporting requirement. Sec. 414. Flight schools not certified by FAA. Sec. 415. Revocation of accreditation. Sec. 416. Report on risk assessment. Sec. 417. Implementation of GAO recommendations. Sec. 418. Implementation of SEVIS II. Sec. 419. Definitions.
TITLE V—AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
Sec. 501. ICE immigration enforcement agents. Sec. 502. ICE detention enforcement officers. Sec. 503. Ensuring the safety of ICE officers and agents. Sec. 504. ICE Advisory Council. Sec. 505. Pilot program for electronic field processing. Sec. 506. Additional ICE deportation officers and support staff. Sec. 507. Additional ICE prosecutors.
TITLE VI—MISCELLANEOUS ENFORCEMENT PROVISIONS
Sec. 601. Timely repatriation. Sec. 602. Encouraging aliens to depart voluntarily. Sec. 603. Deterring aliens ordered removed from remaining in the United States unlawfully. Sec. 604. Reinstatement of removal orders. Sec. 605. Clarification with respect to definition of admission. Sec. 606. Reports to Congress. Sec. 607. Certain activities restricted. Sec. 608. GAO study on deaths in custody. Sec. 609. Removal proceedings. Sec. 610. Eliminating backlog in the immigration court system. Sec. 611. Proper filing of income taxes required for good moral character.
TITLE I—IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES

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SEC. 101. DEFINITIONS AND SEVERABILITY.
(a) STATE DEFINED.—For the purposes of this title, the term “State” has the meaning given to such term in section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).
(b) SECRETARY DEFINED.—For the purpose of this title, the term “Secretary” means the Secretary of Homeland Security.
(c) SEVERABILITY.—If any provision of this title, or the application of such provision to any person or circumstance, is held invalid, the remainder of this title, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.
SEC. 102. IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES.
(a) IN GENERAL.—Subject to section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)), States, or political subdivisions of States, may enact, implement and enforce criminal penalties that penalize the same conduct that is prohibited in the criminal provisions of immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), as long as the criminal penalties do not exceed the relevant Federal criminal penalties (without regard to ancillary issues such as the availability of probation or pardon). States, or political subdivisions of States, may enact, implement and enforce civil penalties that penalize the same conduct that is prohibited in the civil provisions of immigration laws (as defined in such section 101(a)(17)), as long as the civil penalties do not exceed the relevant Federal civil penalties.
(b) LAW ENFORCEMENT PERSONNEL.—Subject to section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)), law enforcement personnel of a State, or of a political subdivision of a State, may investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purposes of enforcing the immigration laws of the United States to the same extent as Federal law enforcement personnel. Law enforcement personnel of a State, or of a political subdivision of a State, may also investigate, identify, apprehend, arrest, or detain aliens for the purposes of enforcing the immigration laws of a State or of a political subdivision of State, as long as those immigration laws are permissible under this section. Law enforcement personnel of a State, or of a political subdivision of a State, may not admit aliens to or remove them from the United States.
SEC. 103. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME
INFORMATION CENTER DATABASE.
(a) PROVISION OF INFORMATION TO THE NCIC.—Not later than 180 days after the date of the enactment of this Act and periodically thereafter as updates may

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require, the Secretary shall provide the National Crime Information Center of the Department of Justice with all information that the Secretary may possess regarding any alien against whom a final order of removal has been issued, any alien who has entered into a voluntary departure agreement, any alien who has overstayed their authorized period of stay, and any alien whose visa has been revoked. The National Crime Information Center shall enter such information into the Immigration Violators File of the National Crime Information Center database, regardless of whether—
(1) the alien received notice of a final order of removal;
(2) the alien has already been removed; or
(3) sufficient identifying information is available with respect to the alien.
(b) INCLUSION OF INFORMATION IN THE NCIC DATABASE.—
(1) IN GENERAL.—Section 534(a) of title 28, United States Code, is
amended—
(A) in paragraph (3), by striking “and” at the end;
(B) by redesignating paragraph (4) as paragraph (5); and
(C) by inserting after paragraph (3) the following:
“(4) acquire, collect, classify, and preserve records of violations by aliens of the immigration laws of the United States, regardless of whether any such alien has received notice of the violation or whether sufficient identifying information is available with respect to any such alien or whether any such alien has already been removed from the United States; and”.
(2) EFFECTIVE DATE.—The Attorney General and the Secretary shall
ensure that the amendment made by paragraph (1) is implemented by not later than 6 months after the date of the enactment of this Act.
SEC. 104. TECHNOLOGY ACCESS.
States shall have access to Federal programs or technology directed broadly at identifying inadmissible or deportable aliens.
SEC. 105. STATE AND LOCAL LAW ENFORCEMENT PROVISION OF
INFORMATION ABOUT APPREHENDED ALIENS.
(a) PROVISION OF INFORMATION.—In compliance with section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.

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1373) and section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644), each State, and each political subdivision of a State, shall provide the Secretary of Homeland Security in a timely manner with the information specified in subsection (b) with respect to each alien apprehended in the jurisdiction of the State, or in the political subdivision of the State, who is believed to be inadmissible or deportable.
(b) INFORMATION REQUIRED.—The information referred to in subsection (a) is as follows:
(1) The alien’s name.
(2) The alien’s address or place of residence.
(3) A physical description of the alien.
(4) The date, time, and location of the encounter with the alien and reason for stopping, detaining, apprehending, or arresting the alien.
(5) If applicable, the alien’s driver’s license number and the State of issuance of such license.
(6) If applicable, the type of any other identification document issued to the alien, any designation number contained on the identification document, and the issuing entity for the identification document.
(7) If applicable, the license plate number, make, and model of any automobile registered to, or driven by, the alien.
(8) A photo of the alien, if available or readily obtainable.
(9) The alien’s fingerprints, if available or readily obtainable.
(10) If applicable, the phone number and email address pertaining to the alien.
(c) ANNUAL REPORT ON REPORTING.—The Secretary shall maintain and annually submit to the Congress a detailed report listing the States, or the political subdivisions of States, that have provided information under subsection (a) in the preceding year.
(d) REIMBURSEMENT.—The Secretary shall reimburse States, and political subdivisions of a State, for all reasonable costs, as determined by the Secretary, incurred by the State, or the political subdivision of a State, as a result of providing information under subsection (a).

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(e) CONSTRUCTION.—Nothing in this section shall require law enforcement officials of a State, or of a political subdivision of a State, to provide the Secretary with information related to a victim of a crime or witness to a criminal offense.
(f) EFFECTIVE DATE.—This section shall take effect on the date that is 120 days after the date of the enactment of this Act and shall apply with respect to aliens apprehended on or after such date.
SEC. 106. FINANCIAL ASSISTANCE TO STATE AND LOCAL POLICE AGENCIES
THAT ASSIST IN THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) GRANTS FOR SPECIAL EQUIPM ENT FOR HOUSING AND PROCESSING CERTAIN ALIENS.—From amounts made available to make grants under this section, the Secretary shall make grants to States, and to political subdivisions of States, for procurement of equipment, technology, facilities, and other products that facilitate and are directly related to investigating, apprehending, arresting, detaining, or transporting aliens who are inadmissible or deportable, including additional administrative costs incurred under this title.
(b) ELIGIBILITY.—To be eligible to receive a grant under this section, a State, or a political subdivision of a State, must have the authority to, and shall have a written policy and a practice to, assist in the enforcement of the immigration laws of the United States in the course of carrying out the routine law enforcement duties of such State or political subdivision of a State. Entities covered under this section may not have any policy or practice that prevents local law enforcement from inquiring about a suspect’s immigration status.
(c) GAO AUDIT.—Not later than 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of funds distributed to States, and to political subdivisions of a State, under subsection (a).
SEC. 107. INCREASED FEDERAL DETENTION SPACE.
(a) CONSTRUCTION OR ACQUISITION OF DETENTION FACILITIES.—
(1) IN GENERAL.—The Secretary shall construct or acquire, in addition to
existing facilities for the detention of aliens, detention facilities in the United States, for aliens detained pending removal from the United States or a decision regarding such removal. Each facility shall have a number of beds necessary to effectuate the purposes of this title.
(2) DETERMINATIONS.—The location of any detention facility built or
acquired in accordance with this subsection shall be determined by the Secretary.

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(b) TECHNICAL AND CONFORMING AMENDMENT.—Section 241(g)(1) of the Immigration and Nationality Act (8 U.S.C. 1231(g)(1)) is amended by striking “may expend” and inserting “shall expend”.
SEC. 108. FEDERAL CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS IN
THE UNITED STATES APPREHENDED BY STATE OR LOCAL LAW ENFORCEMENT.
(a) STATE APPREHENSION.—
(1) IN GENERAL.—Title II of the Immigration and Nationality Act (8
U.S.C. 1151 et seq.) is amended by inserting after section 240C the following:
“CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS PRESENT IN THE
UNITED STATES
“SEC. 240D. (a) TRANSFER OF CUSTODY BY STATE AND LOCAL OFFICIALS.—If a State, or a political subdivision of the State, exercising authority with respect to the apprehension or arrest of an inadmissible or deportable alien submits to the Secretary of Homeland Security a request that the alien be taken into Federal custody, notwithstanding any other provision of law, regulation, or policy the Secretary shall—
“(1) request that the relevant State or local law enforcement agency temporarily hold the alien in their custody or transport the alien for transfer to Federal custody; and
“(2) if the State or local law enforcement agency is unable to transport the alien for transfer to Federal custody, take the alien into custody not later than 48 hours (excluding Saturdays, Sundays, and holidays) after the alien’s release from the custody of the State or political subdivision of the State.
“(b) POLICY ON DETENTION IN FEDERAL, CONTRACT, STATE, OR LOCAL DETENTION FACILITIES.—In carrying out section 241(g)(1), the Attorney General or Secretary of Homeland Security shall ensure that an alien arrested under this title shall be held in custody, pending the alien’s examination under this section, in a Federal, contract, State, or local prison, jail, detention center, or other comparable facility. Notwithstanding any other provision of law, regulation or policy, such facility is adequate for detention, if—
“(1) such a facility is the most suitably located Federal, contract, State, or local facility available for such purpose under the circumstances;
“(2) an appropriate arrangement for such use of the facility can be made; and

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“(3) the facility satisfies the standards for the housing, care, and security of persons held in custody by a United States Marshal.
“(c) REIMBURSEMENT.—The Secretary of Homeland Security shall reimburse a State, and a political subdivision of a State, for all reasonable expenses, as determined by the Secretary, incurred by the State, or political subdivision, as a result of the incarceration and transportation of an alien who is inadmissible or deportable as described in subsections (a) and (b). Compensation provided for costs incurred under such subsections shall be the average cost of incarceration of a prisoner in the relevant State, as determined by the chief executive officer of a State, or of a political subdivision of a State, plus the cost of transporting the alien from the point of apprehension to the place of detention, and to the custody transfer point if the place of detention and place of custody are different.
“(d) SECURE FACILITIES.—The Secretary of Homeland Security shall ensure that aliens incarcerated pursuant to this title are held in facilities that provide an appropriate level of security.
“(e) TRANSFER.—
“(1) IN GENERAL.—In carrying out this section, the Secretary of
Homeland Security shall establish a regular circuit and schedule for the prompt transfer of apprehended aliens from the custody of States, and political subdivisions of a State, to Federal custody.
“(2) CONTRACTS.—The Secretary may enter into contracts, including
appropriate private contracts, to implement this subsection.”.
(2) CLERICAL AMENDMENT.—The table of contents of such Act is
amended by inserting after the item relating to section 240C the following new item:
“Sec. 240D. Custody of inadmissible and deportable aliens present in the United States.”.
(b) GAO AUDIT.—Not later than 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of compensation to States, and to political subdivisions of a State, for the incarceration of inadmissible or deportable aliens under section 240D(a) of the Immigration and Nationality Act (as added by subsection (a)(1)).
(c) EFFECTIVE DATE.—Section 240D of the Immigration and Nationality Act, as added by subsection (a), shall take effect on the date of the enactment of this Act, except that subsection (e) of such section shall take effect on the date that is 120 day after the date of the enactment of this Act.

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SEC. 109. TRAINING OF STATE AND LOCAL LAW ENFORCEMENT PERSONNEL
RELATING TO THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) ESTABLISHMENT OF TRAINING MANUAL AND POCKET GUIDE.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall establish—
(1) a training manual for law enforcement personnel of a State, or of a political subdivision of a State, to train such personnel in the investigation, identification, apprehension, arrest, detention, and transfer to Federal custody of inadmissible and deportable aliens in the United States (including the transportation of such aliens across State lines to detention centers and the identification of fraudulent documents); and
(2) an immigration enforcement pocket guide for law enforcement personnel of a State, or of a political subdivision of a State, to provide a quick reference for such personnel in the course of duty.
(b) AVAILABILITY.—The training manual and pocket guide established in accordance with subsection (a) shall be made available to all State and local law enforcement personnel.
(c) APPLICABILITY.—Nothing in this section shall be construed to require State or local law enforcement personnel to carry the training manual or pocket guide with them while on duty.
(d) COSTS.—The Secretary shall be responsible for any costs incurred in establishing the training manual and pocket guide.
(e) TRAINING FLEXIBILITY.—
(1) IN GENERAL.—The Secretary shall make training of State and local
law enforcement officers available through as many means as possible, including through residential training at the Center for Domestic Preparedness, onsite training held at State or local police agencies or facilities, online training courses by computer, teleconferencing, and videotape, or the digital video display (DVD) of a training course or courses. E­learning through a secure, encrypted distributed learning system that has all its servers based in the United States, is scalable, survivable, and can have a portal in place not later than 30 days after the date of the enactment of this Act, shall be made available by the Federal Law Enforcement Training Center Distributed Learning Program for State and local law enforcement personnel.
(2) FEDERAL PERSONNEL TRAINING.—The training of State and local
law enforcement personnel under this section shall not displace the training of

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Federal personnel.
(3) CLARIFICATION.—Nothing in this title or any other provision of law
shall be construed as making any immigration­related training a requirement for, or prerequisite to, any State or local law enforcement officer to assist in the enforcement of Federal immigration laws.
(4) PRIORITY.—In carrying out this subsection, priority funding shall be
given for existing web­based immigration enforcement training systems.
SEC. 110. IMMUNITY.
Notwithstanding any other provision of law, a law enforcement officer of a State or local law enforcement agency who is acting within the scope of the officer’s official duties shall be immune, to the same extent as a Federal law enforcement officer, from personal liability arising out of the performance of any duty described in this title, including the authorities to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody, an alien for the purposes of enforcing the immigration laws of the United States (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))) or the immigration laws of a State or a political subdivision of a State.
SEC. 111. CRIMINAL ALIEN IDENTIFICATION PROGRAM.
(a) CONTINUATION AND EXPANSION.—
(1) IN GENERAL.—The Secretary shall continue to operate and implement
a program that—
(A) identifies removable criminal aliens in Federal and State correctional facilities;
(B) ensures such aliens are not released into the community; and
(C) removes such aliens from the United States after the completion of their sentences.
(2) EXPANSION.—The program shall be extended to all States. Any State
that receives Federal funds for the incarceration of criminal aliens (pursuant to the State Criminal Alien Assistance Program authorized under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or other similar program) shall—
(A) cooperate with officials of the program;

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(B) expeditiously and systematically identify criminal aliens in its prison and jail populations; and
(C) promptly convey such information to officials of such program as a condition of receiving such funds.
(b) AUTHORIZATION FOR DETENTION AFTER COM PLETION OF STATE OR LOCAL PRISON SENTENCE.—Law enforcement officers of a State, or of a political subdivision of a State, are authorized to—
(1) hold a criminal alien for a period of up to 48 hours (excluding Saturdays, Sundays, and holidays) after the alien has completed the alien’s sentence under State or local law in order to effectuate the transfer of the alien to Federal custody when the alien is inadmissible or deportable; or
(2) issue a detainer that would allow aliens who have served a prison sentence under State or local law to be detained by the State or local prison or jail until the Secretary can take the alien into custody.
(c) TECHNOLOGY USAGE.—Technology, such as video conferencing, shall be used to the maximum extent practicable in order to make the program available in remote locations. Mobile access to Federal databases of aliens and live scan technology shall be used to the maximum extent practicable in order to make these resources available to State and local law enforcement agencies in remote locations.
(d) EFFECTIVE DATE.—This section shall take effect of the date of the enactment of this Act, except that subsection (a)(2) shall take effect on the date that is 180 days after such date.
SEC. 112. CLARIFICATION OF CONGRESSIONAL INTENT.
Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is amended—
(1) in paragraph (1) by striking “may enter” and all that follows through the period at the end and inserting the following: “shall enter into a written agreement with a State, or any political subdivision of a State, upon request of the State or political subdivision, pursuant to which an officer or employee of the State or subdivision, who is determined by the Secretary to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to extent consistent with State and local law. No request from a bona fide State or political subdivision or bona fide law enforcement agency shall be denied

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absent a compelling reason. No limit on the number of agreements under this subsection may be imposed. The Secretary shall process requests for such agreements with all due haste, and in no case shall take not more than 90 days from the date the request is made until the agreement is consummated.”;
(2) by redesignating paragraph (2) as paragraph (5) and paragraphs (3) through (10) as paragraphs (7) through (14), respectively;
(3) by inserting after paragraph (1) the following:
“(2) An agreement under this subsection shall accommodate a requesting State or political subdivision with respect to the enforcement model or combination of models, and shall accommodate a patrol model, task force model, jail model, any combination thereof, or any other reasonable model the State or political subdivision believes is best suited to the immigration enforcement needs of its jurisdiction.
“(3) No Federal program or technology directed broadly at identifying inadmissible or deportable aliens shall substitute for such agreements, including those establishing a jail model, and shall operate in addition to any agreement under this subsection.
“(4)(A) No agreement under this subsection shall be terminated absent a compelling reason.
“(B)(i) The Secretary shall provide a State or political subdivision written notice of intent to terminate at least 180 days prior to date of intended termination, and the notice shall fully explain the grounds for termination, along with providing evidence substantiating the Secretary’s allegations.
“(ii) The State or political subdivision shall have a cause of action against the Secretary in a United States District Court within the State regarding the termination of the agreement, and if the ruling is against the State or political subdivision, to appeal the ruling to the Federal Circuit Court of Appeals and, if the ruling is against the State or political subdivision, to the Supreme Court.
“(C) The agreement shall remain in full effect during the course of any and all legal proceedings.”; and
(4) by inserting after paragraph (5) (as redesignated) the following:
“(6) The Secretary of Homeland Security shall make training of State and local law enforcement officers available through as many means as possible, including through residential training at the Center for Domestic Preparedness and the Federal Law Enforcement Training Center, onsite training held at State or local police agencies or facilities, online training courses by computer, teleconferencing, and

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videotape, or the digital video display (DVD) of a training course or courses. Distance learning through a secure, encrypted distributed learning system that has all its servers based in the United States, is scalable, survivable, and can have a portal in place not later than 30 days after the date of the enactment of this Act, shall be made available by the COPS Office of the Department of Justice and the Federal Law Enforcement Training Center Distributed Learning Program for State and local law enforcement personnel. Preference shall be given to private sector­based web­ based immigration enforcement training programs for which the Federal Government has already provided support to develop.”.
SEC. 113. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM (SCAAP).
Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) is amended—
(1) by striking “Attorney General” the first place such term appears and inserting “Secretary of Homeland Security”;
(2) by striking “Attorney General” each place such term appears thereafter and inserting “Secretary”; and
(3) in paragraph (3)(A), by inserting “charged with or” before “convicted”.
SEC. 114. STATE VIOLATIONS OF ENFORCEMENT OF IMMIGRATION LAWS.
(a) IN GENERAL.—Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended—
(1) by striking “Immigration and Naturalization Service” each place it appears and inserting “Department of Homeland Security”;
(2) in subsection (a), by striking “may” and inserting “shall”;
(3) in subsection (b)—
(A) by striking “no person or agency may ” and inserting “a person or agency shall not”;
(B) by striking “doing any of the following with respect to information” and inserting “undertaking any of the following law enforcement activities”; and
(C) by striking paragraphs (1) through (3) and inserting the following:

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“(1) Notifying the Federal Government regarding the presence of inadmissible and deportable aliens who are encountered by law enforcement personnel of a State or political subdivision of a State.
“(2) Complying with requests for information from Federal law enforcement.
“(3) Issuing policies in the form of a resolutions, ordinances, administrative actions, general or special orders, or departmental policies that violate Federal law or restrict a State or political subdivision of a State from complying with Federal law or coordinating with Federal law enforcement.”; and
(4) by adding at the end the following:
“(d) COMPLIANCE.—
“(1) IN GENERAL.—A State, or a political subdivision of a State, that has
in effect a statute, policy, or practice that prohibits law enforcement officers of the State, or of a political subdivision of the State, from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the officers’ routine law enforcement duties shall not be eligible to receive—
“(A) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or the ‘Cops on the Beat’ program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.); or
“(B) any other law enforcement or Department of Homeland Security grant.
“(2) ANNUAL DETERMINATION.—The Secretary shall determine annually
which State or political subdivision of a State are not in compliance with this section and shall report such determinations to Congress on March 1 of each year.
“(3) REPORTS.—The Attorney General shall issue a report concerning the
compliance of any particular State or political subdivision at the request of the House or Senate Judiciary Committee. Any jurisdiction that is found to be out of compliance shall be ineligible to receive Federal financial assistance as provided in paragraph (1) for a minimum period of 1 year, and shall only become eligible again after the Attorney General certifies that the jurisdiction is in compliance.

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“(4) REALLOCATION.—Any funds that are not allocated to a State or to a
political subdivision of a State, due to the failure of the State, or of the political subdivision of the State, to comply with subsection (c) shall be reallocated to States, or to political subdivisions of States, that comply with such subsection.
“(e) CONSTRUCTION.—Nothing in this section shall require law enforcement officials from States, or from political subdivisions of States, to report or arrest victims or witnesses of a criminal offense.”.
(b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act, except that subsection (d) of section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373), as added by this section, shall take effect beginning one year after the date of the enactment of this Act.
SEC. 115. CLARIFYING THE AUTHORITY OF ICE DETAINERS.
(a) IN GENERAL.—Except as otherwise provided by Federal law or rule of procedure, the Secretary of Homeland Security shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute the Secretary’s duties.
(b) STATE AND LOCAL COOPERATION WITH DHS DETAINERS.—A State, or a political subdivision of a State, that has in effect a statute or policy or practice providing that it not comply with any Department of Homeland Security detainer ordering that it temporarily hold an alien in their custody so that the alien may be taken into Federal custody, or transport the alien for transfer to Federal custody, shall not be eligible to receive—
(1) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or the “Cops on the Beat” program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.); or
(2) any other law enforcement or Department of Homeland Security grant.
(c) IMMUNITY.—A State or a political subdivision of a State acting in compliance with a Department of Homeland Security detainer who temporarily holds aliens in its custody so that they may be taken into Federal custody, or transports the aliens for transfer to Federal custody, shall be considered to be acting under color of Federal authority for purposes of determining its liability, and immunity from suit, in civil actions brought by the aliens under Federal or State law.

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(d) PROBABLE CAUSE.—It is the sense of Congress that the Department of Homeland Security has probable cause to believe that an alien is inadmissible or deportable when it issues a detainer regarding such alien under the standards in place on the date of introduction of this Act.
TITLE II—NATIONAL SECURITY
SEC. 201. REMOVAL OF, AND DENIAL OF BENEFITS TO, TERRORIST ALIENS.
(a) ASYLUM.—Section 208(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)) is amended—
(1) by inserting “or the Secretary of Homeland Security” after “if the Attorney General”; and
(2) by amending clause (v) to read as follows:
“(v) the alien is described in subparagraph (B)(i) or (F) of section 212(a)(3), unless, in the case of an alien described in subparagraph (IV) of section 212(a)(3)(B)(i), the Secretary of Homeland Security or the Attorney General determines, in the discretion of the Secretary or the Attorney General, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or”.
(b) CANCELLATION OF REMOVAL.—Section 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amended—
(1) by striking “inadmissible under” and inserting “described in”; and
(2) by striking “deportable under” and inserting “described in”.
(c) VOLUNTARY DEPARTURE.—Section 240B(b)(1)(C) of such Act (8 U.S.C. 1229c(b)(1)(C)) is amended by striking “deportable under section 237(a)(2)(A)(iii) or section 237(a)(4);” and inserting “described in paragraph (2)(A)(iii) or (4) of section 237(a);”.
(d) RESTRICTION ON REMOVAL.—Section 241(b)(3)(B) of such Act (8 U.S.C. 1231(b)(3)(B)) is amended—
(1) in the matter preceding clause (i), by inserting “or the Secretary of Homeland Security” after “Attorney General” each place it appears;
(2) in clause (iii), by striking “or” at the end;

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(3) in clause (iv), by striking the period at the end and inserting a semicolon;
(4) by striking the flush matter that follows after clause (iv); and
(5) by inserting after clause (iv) the following:
“(v) the alien is described in subparagraph (B)(i) or (F) of section 212(a)(3); or”.
(e) RECORD OF ADMISSION.—
(1) IN GENERAL.—Section 249 of such Act (8 U.S.C. 1259) is amended
to read as follows:
“RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF
CERTAIN ALIENS WHO ENTERED THE UNITED STATES PRIOR TO JANUARY 1, 1972
“SEC. 249. The Secretary of Homeland Security, in the discretion of the Secretary and under such regulations as the Secretary may prescribe, may enter a record of lawful admission for permanent residence in the case of any alien, if no such record is otherwise available and the alien—
“(1) entered the United States before January 1, 1972;
“(2) has continuously resided in the United States since such entry;
“(3) has been a person of good moral character since such entry;
“(4) is not ineligible for citizenship;
“(5) is not described in paragraph (1)(A)(iv), (2), (3), (6)(C), (6)(E), or (8) of section 212(a); and
“(6) did not, at any time, without reasonable cause fail or refuse to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is
amended by amending the item relating to section 249 to read as follows:
“Sec. 249. Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972.”.

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(f) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of enactment of this Act and sections 208(b)(2)(A), 212(a), 240A, 240B, 241(b)(3), and 249 of the Immigration and Nationality Act, as so amended, shall apply to—
(1) all aliens in removal, deportation, or exclusion proceedings;
(2) all applications pending on, or filed after, the date of the enactment of this Act; and
(3) with respect to aliens and applications described in paragraph (1) or (2) of this subsection, acts and conditions constituting a ground for exclusion, deportation, or removal occurring or existing before, on, or after the date of the enactment of this Act.
SEC. 202. TERRORIST BAR TO GOOD MORAL CHARACTER.
(a) DEFINITION OF GOOD MORAL CHARACTER.—Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended—
(1) in the matter preceding paragraph (1), by striking “who, during the period for which good moral character is required to be established, is,” and inserting “who is”;
(2) by inserting after paragraph (1) the following:
“(2) one who the Secretary of Homeland Security or Attorney General determines to have been at any time an alien described in section 212(a)(3) or 237(a)(4), which determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information;”;
(3) in paragraph (8), by striking “subsection (a)(43));” and inserting “subsection (a)(43)), regardless whether the crime was classified as an aggravated felony at the time of conviction;”; and
(4) in the matter following paragraph (9), by striking the first sentence and inserting the following: “The fact that any person is not within any of the foregoing classes shall not preclude a discretionary finding for other reasons that such a person is or was not of good moral character. The Secretary or the Attorney General shall not be limited to the applicant’s conduct during the period for which good moral character is required, but may take into consideration as a basis for determination the applicant’s conduct and acts at any time.”.
(b) AGGRAVATED FELONS.—Section 509(b) of the Immigration Act of 1990 (8 U.S.C. 1101 note) is amended to read as follows:

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“(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on November 29, 1990, and shall apply to convictions occurring before, on or after such date.”.
(c) TECHNICAL CORRECTION TO THE INTELLIGENCE REFORM ACT.—Section 5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458) is amended by striking “adding at the end” and inserting “inserting after paragraph (8)”.
(d) EFFECTIVE DATE.—The amendments made by subsections (a) and (b) shall take effect on the date of enactment of this Act, shall apply to any act that occurred before, on, or after such date and shall apply to any application for naturalization or any other benefit or relief, or any other case or matter under the immigration laws pending on or filed after such date. The amendments made by subsection (c) shall take effect as if enacted in the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458).
SEC. 203. TERRORIST BAR TO NATURALIZATION.
(a) NATURALIZATION OF PERSONS ENDANGERING THE NATIONAL SECURITY. —Section 316 of the Immigration and Nationality Act (8 U.S.C. 1427) is amended by adding at the end the following:
“(g) PERSONS ENDANGERING THE NATIONAL SECURITY.—No person shall be naturalized who the Secretary of Homeland Security determines to have been at any time an alien described in section 212(a)(3) or 237(a)(4). Such determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information.”.
(b) CONCURRENT NATURALIZATION AND REMOVAL PROCEEDINGS.—Section 318 of the Immigration and Nationality Act (8 U.S.C. 1429) is amended by striking “other Act;” and inserting “other Act; and no application for naturalization shall be considered by the Secretary of Homeland Security or any court if there is pending against the applicant any removal proceeding or other proceeding to determine the applicant’s inadmissibility or deportability, or to determine whether the applicant’s lawful permanent resident status should be rescinded, regardless of when such proceeding was commenced: Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed binding in any way upon the Secretary of Homeland Security with respect to the question of whether such person has established his eligibility for naturalization as required by this title;”.
(c) PENDING DENATURALIZATION OR REMOVAL PROCEEDINGS.—Section 204(b) of the Immigration and Nationality Act (8 U.S.C. 1154(b)) is amended by adding at the end the following: “No petition shall be approved pursuant to this

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section if there is any administrative or judicial proceeding (whether civil or criminal) pending against the petitioner that could (whether directly or indirectly) result in the petitioner’s denaturalization or the loss of the petitioner’s lawful permanent resident status.”.
(d) CONDITIONAL PERMANENT RESIDENTS.—Sections 216(e) and section 216A(e) of the Immigration and Nationality Act (8 U.S.C. 1186a(e) and 1186b(e)) are each amended by striking the period at the end and inserting “, if the alien has had the conditional basis removed pursuant to this section.”.
(e) DISTRICT COURT JURISDICTION.—Subsection 336(b) of the Immigration and Nationality Act (8 U.S.C. 1447(b)) is amended to read as follows:
“(b) If there is a failure to render a final administrative decision under section 335 before the end of the 180­day period after the date on which the Secretary of Homeland Security completes all examinations and interviews conducted under such section, as such terms are defined by the Secretary of Homeland Security pursuant to regulations, the applicant may apply to the district court for the district in which the applicant resides for a hearing on the matter. Such court shall only have jurisdiction to review the basis for delay and remand the matter to the Secretary of Homeland Security for the Secretary’s determination on the application.”.
(f) CONFORMING AMENDMENT.—Section 310(c) of the Immigration and Nationality Act (8 U.S.C. 1421(c)) is amended—
(1) by inserting “, not later than the date that is 120 days after the Secretary of Homeland Security’s final determination,” after “seek”; and
(2) by striking the second sentence and inserting the following: “The burden shall be upon the petitioner to show that the Secretary’s denial of the application was not supported by facially legitimate and bona fide reasons. Except in a proceeding under section 340, notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to determine, or to review a determination of the Secretary made at any time regarding, whether, for purposes of an application for naturalization, an alien is a person of good moral character, whether the alien understands and is attached to the principles of the Constitution of the United States, or whether an alien is well disposed to the good order and happiness of the United States.”.
(g) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of enactment of this Act, shall apply to any act that occurred before, on, or after such date, and shall apply to any application for naturalization or any other case or matter under the immigration laws pending on, or filed after, such date.

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SEC. 204. DENATURALIZATION FOR TERRORISTS.
(a) IN GENERAL.—Section 340 of the Immigration and Nationality Act is amended—
(1) by redesignating subsections (f) through (h) as subsections (g) through (i), respectively; and
(2) by inserting after subsection (e) the following:
“(f)(1) If a person who has been naturalized participates in any act described in paragraph (2), the Attorney General is authorized to find that, as of the date of such naturalization, such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and upon such finding shall set aside the order admitting such person to citizenship and cancel the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively.
“(2) The acts described in this paragraph are the following:
“(A) Any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means.
“(B) Engaging in a terrorist activity (as defined in clauses (iii) and (iv) of section 212(a)(3)(B)).
“(C) Incitement of terrorist activity under circumstances indicating an intention to cause death or serious bodily harm.
“(D) Receiving military­type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in section 212(a)(3)(B)(vi)).”.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that occur on or after such date.
SEC. 205. USE OF 1986 IRCA LEGALIZATION INFORMATION FOR NATIONAL
SECURITY PURPOSES.

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(a) SPECIAL AGRICULTURAL WORKERS.—Section 210(b)(6) of the Immigration and Nationality Act (8 U.S.C. 1160(b)(6)) is amended—
(1) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (A), by striking “Department of Justice,” and inserting “Department of Homeland Security,”;
(3) by redesignating subparagraphs (C) and (D) as subparagraphs (D) and (E), respectively;
(4) by inserting after subparagraph (B) the following:
“(C) AUTHORIZED DISCLOSURES.—
“(i) CENSUS PURPOSE.—The Secretary of Homeland Security
may provide, in his discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed under section 8 of title 13, United States Code.
“(ii) NATIONAL SECURITY PURPOSE.—The Secretary of
Homeland Security may provide, in his discretion, for the furnishing, use, publication, or release of information furnished under this section in any investigation, case, or matter, or for any purpose, relating to terrorism, national intelligence or the national security.”; and
(5) in subparagraph (D), as redesignated, by striking “Service” and inserting “Department of Homeland Security”.
(b) ADJUSTM ENT OF STATUS UNDER THE IM M IGRATION REFORM AND CONTROL ACT OF 1986.—Section 245A(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1255a(c)(5)), is amended—
(1) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (A), by striking “Department of Justice,” and inserting “Department of Homeland Security,”;
(3) by amending subparagraph (C) to read as follows:
“(C) AUTHORIZED DISCLOSURES.—

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“(i) CENSUS PURPOSE.—The Secretary of Homeland Security
may provide, in his discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed under section 8 of title 13, United States Code.
“(ii) NATIONAL SECURITY PURPOSE.—The Secretary of
Homeland Security may provide, in his discretion, for the furnishing, use, publication, or release of information furnished under this section in any investigation, case, or matter, or for any purpose, relating to terrorism, national intelligence or the national security.”; and
(4) in subparagraph (D)(i), striking “Service” and inserting “Department of Homeland Security”.
SEC. 206. BACKGROUND AND SECURITY CHECKS.
(a) REQUIREM ENT TO COM PLETE BACKGROUND AND SECURITY CHECKS.— Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
“(h) Notwithstanding any other provision of law (statutory or nonstatutory), including but not limited to section 309 of Public Law 107–173, sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, neither the Secretary of Homeland Security, the Attorney General, nor any court may—
“(1) grant, or order the grant of or adjudication of an application for adjustment of status to that of an alien lawfully admitted for permanent residence;
“(2) grant, or order the grant of or adjudication of an application for United States citizenship or any other status, relief, protection from removal, employment authorization, or other benefit under the immigration laws;
“(3) grant, or order the grant of or adjudication of, any immigrant or nonimmigrant petition; or
“(4) issue or order the issuance of any documentation evidencing or related to any such grant, until such background and security checks as the Secretary may in his discretion require have been completed or updated to the satisfaction of the Secretary.

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“(i) Notwithstanding any other provision of law (statutory or nonstatutory), including but not limited to section 309 of Public Law 107–173, sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, neither the Secretary of Homeland Security nor the Attorney General may be required to—
“(1) grant, or order the grant of or adjudication of an application for adjustment of status to that of an alien lawfully admitted for permanent residence,
“(2) grant, or order the grant of or adjudication of an application for United States citizenship or any other status, relief, protection from removal, employment authorization, or other benefit under the immigration laws,
“(3) grant, or order the grant of or adjudication of, any immigrant or nonimmigrant petition, or
“(4) issue or order the issuance of any documentation evidencing or related to any such grant, until any suspected or alleged materially false information, material misrepresentation or omission, concealment of a material fact, fraud or forgery, counterfeiting, or alteration, or falsification of a document, as determined by the Secretary, relating to the adjudication of an application or petition for any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this subsection has been investigated and resolved to the Secretary’s satisfaction.
“(j) Notwithstanding any other provision of law (statutory or nonstatutory), including section 309 of the Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, no court shall have jurisdiction to require any of the acts in subsection (h) or (i) to be completed by a certain time or award any relief for failure to complete or delay in completing such acts.”.
(b) CONSTRUCTION.—
(1) IN GENERAL.—Chapter 4 of title III of the Immigration and
Nationality Act (8 U.S.C. 1501 et seq.) is amended by adding at the end the following:
“CONSTRUCTION
“SEC. 362. (a) IN GENERAL.—Nothing in this Act or any other law, except as provided in subsection (d), shall be construed to require the Secretary of Homeland Security, the Attorney General, the Secretary of State, the Secretary of Labor, or a consular officer to grant any application, approve any petition, or grant or continue

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any relief, protection from removal, employment authorization, or any other status or benefit under the immigration laws by, to, or on behalf of—
“(1) any alien deemed by the Secretary to be described in section 212(a) (3) or section 237(a)(4); or
“(2) any alien with respect to whom a criminal or other proceeding or investigation is open or pending (including, but not limited to, issuance of an arrest warrant, detainer, or indictment), where such proceeding or investigation is deemed by the official described in subsection (a) to be material to the alien’s eligibility for the status or benefit sought.
“(b) DENIAL OR WITHHOLDING OF ADJUDICATION.—An official described in subsection (a) may, in the discretion of the official, deny (with respect to an alien described in paragraph (1) or (2) of subsection (a)) or withhold adjudication of pending resolution of the investigation or case (with respect to an alien described in subsection (a)(2) of this section) any application, petition, relief, protection from removal, employment authorization, status or benefit.
“(c) JURISDICTION.—Notwithstanding any other provision of law (statutory or nonstatutory), including section 309 of the Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, no court shall have jurisdiction to review a decision to deny or withhold adjudication pursuant to subsection (b) of this section.
“(d) WITHHOLDING OF REMOVAL AND TORTURE CONVENTION.—This section does not limit or modify the applicability of section 241(b)(3) or the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105–277) with respect to an alien otherwise eligible for protection under such provisions.”.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is
amended by inserting after the item relating to section 361 the following:
“Sec. 362. Construction.”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications for immigration benefits pending on or after such date.

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SEC. 207. TECHNICAL AMENDMENTS RELATING TO THE INTELLIGENCE
REFORM AND TERRORISM PREVENTION ACT OF 2004.
(a) TRANSIT WITHOUT VISA PROGRAM.—Section 7209(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1185 note) is amended by striking “the Secretary, in conjunction with the Secretary of Homeland Security,” and inserting “the Secretary of Homeland Security, in consultation with the Secretary of State,”.
(b) TECHNOLOGY ACQUISITION AND DISSEMINATION PLAN.—Section 7201(c) (1) of such Act is amended by inserting “and the Department of State” after “used by the Department of Homeland Security”.
TITLE III—REMOVAL OF CRIMINAL ALIENS
SEC. 301. DEFINITION OF AGGRAVATED FELONY.
(a) DEFINITION OF AGGRAVATED FELONY.—Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended—
(1) by striking “The term ‘aggravated felony’ means—” and inserting “Notwithstanding any other provision of law, the term ‘aggravated felony’ applies to an offense described in this paragraph, whether in violation of Federal or State law, or in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, even if the length of the term of imprisonment for the offense is based on recidivist or other enhancements and regardless of whether the conviction was entered before, on, or after September 30, 1996, and means—”;
(2) in subparagraph (A), by striking “murder, rape, or sexual abuse of a minor;” and inserting “an offense relating to murder, manslaughter, homicide, rape (whether the victim was conscious or unconscious), or any offense of a sexual nature involving a victim under the age of 18 years;”;
(3) in subparagraph (B), by inserting “an offense relating to” before “illicit trafficking”;
(4) in subparagraph (C), by inserting “an offense relating to” before “illicit trafficking in firearms”;
(5) in subparagraph (F), by inserting “an offense relating to” before “a crime of violence”;
(6) in subparagraph (G), by striking “a theft offense (including receipt of stolen property) or a burglary offense” and inserting “an offense relating to theft (including receipt of stolen property) or burglary”;

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(7) in subparagraph (I), by striking “or 2252” and inserting “2252, or 2252A”;
(8) in subparagraph (N), by striking “paragraph (1)(A) or (2) of” and all that follows through the end and inserting “section 274(a) (relating to alien smuggling);”;
(9) in subparagraph (O), by striking “section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;” and inserting “section 275 or 276 for which the term of imprisonment is at least 6 months;”;
(10) in subparagraph (U), by striking “an attempt or conspiracy to commit an offense described in this paragraph” and inserting “attempting or conspiring to commit an offense described in this paragraph, or aiding, abetting, counseling, procuring, commanding, inducing, or soliciting the commission of such an offense”; and
(11) by striking the undesignated matter following subparagraph (U).
(b) EFFECTIVE DATE; APPLICATION OF AMENDMENTS.—
(1) IN GENERAL.—The amendments made by subsection (a)—
(A) shall take effect on the date of the enactment of this Act; and
(B) shall apply to any act or conviction that occurred before, on, or after such date.
(2) APPLICATION OF IIRIRA AMENDMENTS.—The amendments to section
101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–627) shall continue to apply, whether the conviction was entered before, on, or after September 30, 1996.
SEC. 302. PRECLUDING ADMISSIBILITY OF ALIENS CONVICTED OF
AGGRAVATED FELONIES OR OTHER SERIOUS OFFENSES.
(a) INADM ISSIBILITY ON CRIM INAL AND RELATED GROUNDS; WAIVERS.— Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended—
(1) in subsection (a)(2)(A)(i)—
(A) in subclause (I), by striking “or” at the end;

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(B) in subclause (II), by adding “or” at the end; and
(C) by inserting after subclause (II) the following:
“(III) a violation of (or a conspiracy or attempt to violate) an offense described in section 408 of title 42, United States Code (relating to social security account numbers or social security cards) or section 1028 of title 18, United States Code (relating to fraud and related activity in connection with identification documents, authentication features, and information),”;
(2) by adding at the end of subsection (a)(2) the following:
“(J) PROCUREMENT OF CITIZENSHIP OR NATURALIZATION
UNLAWFULLY.—Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a violation of, or an attempt or a conspiracy to violate, subsection (a) or (b) of section 1425 of title 18, United States Code (relating to the procurement of citizenship or naturalization unlawfully) is inadmissible.
“(K) CERTAIN FIREARM OFFENSES.—Any alien who at any time has
been convicted under any law of, or who admits having committed or admits committing acts which constitute the essential elements of, purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is inadmissible.
“(L) AGGRAVATED FELONS.—Any alien who has been convicted of
an aggravated felony at any time is inadmissible.
“(M) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION
OF PROTECTION ORDERS, CRIMES AGAINST CHILDREN.—
“(i) DOMESTIC VIOLENCE, STALKING, AND CHILD ABUSE.—
Any alien who at any time is convicted of, or who admits having committed or admits committing acts which constitute the essential elements of, a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is inadmissible. For purposes of this clause, the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of

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title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local or foreign government.
“(ii) VIOLATORS OF PROTECTION ORDERS.—Any alien who at
any time is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is inadmissible. For purposes of this clause, the term ‘protection order’ means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a independent order in another proceeding.
“(iii) WAIVER AUTHORIZED.—The waiver authority available
under section 237(a)(7) with respect to section 237(a)(2)(E)(i) shall be available on a comparable basis with respect to this subparagraph.”; and
(3) in subsection (h)—
(A) by striking “The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2)” and inserting “The Attorney General or the Secretary of Homeland Security may, in the discretion of the Attorney General or the Secretary, waive the application of subparagraphs (A)(i)(I), (III), (B), (D), (E), or (M) of subsection (a)(2)”;
(B) by striking “a criminal act involving torture.” and inserting “a criminal act involving torture, or has been convicted of an aggravated felony.”;
(C) by striking “if either since the date of such admission the alien has been convicted of an aggravated felony or the alien” and inserting “if since the date of such admission the alien”; and

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(D) by inserting “or Secretary of Homeland Security” after “the Attorney General” each place it appears.
(b) DEPORTABILITY; CRIMINAL OFFENSES.—Section 237(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(3)(B)) is amended—
(1) in clause (ii), by striking “or” at the end;
(2) in clause (iii), by inserting “or” at the end; and
(3) by inserting after clause (iii) the following:
“(iv) of a violation of, or an attempt or a conspiracy to violate, section 1425(a) or (b) of title 18 (relating to the procurement of citizenship or naturalization unlawfully),”.
(c) DEPORTABILITY; OTHER CRIMINAL OFFENSES.—Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:
“(G) FRAUD AND RELATED ACTIVITY ASSOCIATED WITH SOCIAL
SECURITY ACT BENEFITS AND IDENTIFICATION DOCUMENTS.—Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) section 208 of the Social Security Act (42 U.S.C. 408) (relating to social security account numbers or social security cards) or section 1028 of title 18, United States Code (relating to fraud and related activity in connection with identification) is deportable.”.
(d) EFFECTIVE DATE.—The amendments made by this section shall apply—
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened, on or after such date.
(e) CONSTRUCTION.—The amendments made by subsection (a) shall not be construed to create eligibility for relief from removal under former section 212(c) of the Immigration and Nationality Act where such eligibility did not exist before these amendments became effective.
SEC. 303. ESPIONAGE CLARIFICATION.

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Section 212(a)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (3)(A)), is amended to read as follows:
“(A) IN GENERAL.—Any alien who a consular officer, the Attorney
General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in, or who is engaged in, or with respect to clauses (i) and (iii) of this subparagraph has engaged in—
“(i) any activity—
“(I) to violate any law of the United States relating to espionage or sabotage; or
“(II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information;
“(ii) any other unlawful activity; or
“(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means;
is inadmissible.”.
SEC. 304. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION
OF FIREARMS BY, CERTAIN ALIENS.
Section 922 of title 18, United States Code, is amended—
(1) in subsection (d)(5), in subparagraph (B), by striking “(y)(2)” and all that follows and inserting “(y), is in the United States not as an alien lawfully admitted for permanent residence;”;
(2) in subsection (g)(5), in subparagraph (B), by striking “(y)(2)” and all that follows and inserting “(y), is in the United States not as an alien lawfully admitted for permanent residence;”; and
(3) in subsection (y)—
(A) in the header, by striking “ADMITTED UNDER NONIMMIGRANT VISAS.—” and inserting “NOT LAWFULLY ADMITTED FOR PERMANENT R E S I DE NC E . — ”;

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(B) in paragraph (1), by amending subparagraph (B) to read as follows:
“(B) the term ‘lawfully admitted for permanent residence’ has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).”;
(C) in paragraph (2), by striking “under a nonimmigrant visa” and inserting “but not lawfully admitted for permanent residence”; and
(D) in paragraph (3)(A), by striking “admitted to the United States under a nonimmigrant visa” and inserting “lawfully admitted to the United States but not as an alien lawfully admitted for permanent residence”.
SEC. 305. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION,
NATURALIZATION, AND PEONAGE OFFENSES.
Section 3291 of title 18, United States Code, is amended by striking “No person” and all that follows through the period at the end and inserting the following: “No person shall be prosecuted, tried, or punished for a violation of any section of chapters 69 (relating to nationality and citizenship offenses) and 75 (relating to passport, visa, and immigration offenses), or for a violation of any criminal provision of section 243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act, or for an attempt or conspiracy to violate any such section, unless the indictment is returned or the information is filed within ten years after the commission of the offense.”.
SEC. 306. CONFORMING AMENDMENT TO THE DEFINITION OF
RACKETEERING ACTIVITY.
Section 1961(1) of title 18, United States Code, is amended by striking “section 1542” through “section 1546 (relating to fraud and misuse of visas, permits, and other documents)” and inserting “sections 1541–1548 (relating to passports and visas)”.
SEC. 307. CONFORMING AMENDMENTS FOR THE AGGRAVATED FELONY
DEFINITION.
(a) IN GENERAL.—Subparagraph (P) of section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended to read as follows:
“(P) an offense which is described in any section of chapter 75 of title 18, United States Code, for which the term of imprisonment is at least 12 months;”.

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(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 308. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT OF STATUS FOR
AGGRAVATED FELONS.
(a) IN GENERAL.—Section 209(c) of the Immigration and Nationality Act (8 U.S.C. 1159(c)) is amended by adding at the end thereof the following: “However, an alien who is convicted of an aggravated felony is not eligible for a waiver or for adjustment of status under this section.”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply—
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened, on or after such date.
SEC. 309. PRECLUDING WITHHOLDING OF REMOVAL FOR AGGRAVATED
FELONS.
(a) IN GENERAL.—Section 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)), as amended by section 201, is further amended by inserting after clause (v), as inserted by section 201, the following:
“(vi) the alien is convicted of an aggravated felony.”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply—
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened on or after such date.
SEC. 310. INADMISSIBILITY AND DEPORTABILITY OF DRUNK DRIVERS.
(a) IN GENERAL.—Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) (as amended by this Act) is further amended—
(1) in subparagraph (T), by striking “and”;

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(2) in subparagraph (U), by striking the period at the end and inserting “; and”; and
(3) by inserting after subparagraph (U) the following:
“(V) a second or subsequent conviction for driving while intoxicated (including a conviction for driving while under the influence of or impaired by alcohol or drugs) without regard to whether the conviction is classified as a misdemeanor or felony under State law.”.
(b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and apply to convictions entered on or after such date.
SEC. 311. DETENTION OF DANGEROUS ALIENS.
(a) IN GENERAL.—Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended—
(1) by striking “Attorney General” each place it appears, except for the first reference in paragraph (4)(B)(i), and inserting “Secretary of Homeland Security”;
(2) in paragraph (1), by amending subparagraph (B) to read as follows:
“(B) BEGINNING OF PERIOD.—The removal period begins on the
latest of the following:
“(i) The date the order of removal becomes administratively final.
“(ii) If the alien is not in the custody of the Secretary on the date the order of removal becomes administratively final, the date the alien is taken into such custody.
“(iii) If the alien is detained or confined (except under an immigration process) on the date the order of removal becomes administratively final, the date the alien is taken into the custody of the Secretary, after the alien is released from such detention or confinement.”;
(3) in paragraph (1), by amending subparagraph (C) to read as follows:
“(C) SUSPENSION OF PERIOD.—

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“(i) EXTENSION.—The removal period shall be extended
beyond a period of 90 days and the Secretary may, in the Secretary’s sole discretion, keep the alien in detention during such extended period if—
“(I) the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal;
“(II) a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal;
“(III) the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency; or
“(IV) a court or the Board of Immigration Appeals orders a remand to an immigration judge or the Board of Immigration Appeals, during the time period when the case is pending a decision on remand (with the removal period beginning anew on the date that the alien is ordered removed on remand).
“(ii) RENEWAL.—If the removal period has been extended
under clause (C)(i), a new removal period shall be deemed to have begun on the date—
“(I) the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order;
“(II) the stay of removal is no longer in effect; or
“(III) the alien is returned to the custody of the Secretary.
“(iii) MANDATORY DETENTION FOR CERTAIN ALIENS.—In the
case of an alien described in section 236(c)(1), the Secretary shall keep that alien in detention during the extended period described in clause (i).

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“(iv) SOLE FORM OF RELIEF.—An alien may seek relief from
detention under this subparagraph only by filing an application for a writ of habeas corpus in accordance with chapter 153 of title 28, United States Code. No alien whose period of detention is extended under this subparagraph shall have the right to seek release on bond.”;
(4) in paragraph (3)—
(A) by adding after “If the alien does not leave or is not removed within the removal period” the following: “or is not detained pursuant to paragraph (6) of this subsection”; and
(B) by striking subparagraph (D) and inserting the following:
“(D) to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws.”;
(5) in paragraph (4)(A), by striking “paragraph (2)” and inserting “subparagraph (B)”; and
(6) by striking paragraph (6) and inserting the following:
“(6) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN
ALIENS.—
“(A) DETENTION REVIEW PROCESS FOR COOPERATIVE ALIENS
ESTABLISHED.—For an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and who has not conspired or acted to prevent removal, the Secretary shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.

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“(B) AUTHORITY TO DETAIN BEYOND REMOVAL PERIOD.—
“(i) IN GENERAL.—The Secretary of Homeland Security, in the
exercise of the Secretary’s sole discretion, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall have no right to seek release on bond.
“(ii) SPECIFIC CIRCUMSTANCES.—The Secretary of Homeland
Security, in the exercise of the Secretary’s sole discretion, may continue to detain an alien beyond the 90 days authorized in clause (i)—
“(I) until the alien is removed, if the Secretary, in the Secretary’s sole discretion, determines that there is a significant likelihood that the alien—
“(aa) will be removed in the reasonably foreseeable future; or
“(bb) would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent removal;
“(II) until the alien is removed, if the Secretary of Homeland Security certifies in writing—
“(aa) in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;
“(bb) after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;
“(cc) based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the

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grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or
“(dd) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either—
“(AA) the alien has been convicted of one or more aggravated felonies (as defined in section 101(a) (43)(A)) or of one or more crimes identified by the Secretary of Homeland Security by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or
“(BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or
“(III) pending a certification under subclause (II), so long as the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period, as provided in paragraph (1)(C)).
“(iii) NO RIGHT TO BOND HEARING.—An alien whose
detention is extended under this subparagraph shall have no right to seek release on bond, including by reason of a certification under clause (ii)(II).
“(C) RENEWAL AND DELEGATION OF CERTIFICATION.—
“(i) RENEWAL.—The Secretary of Homeland Security may
renew a certification under subparagraph (B)(ii)(II) every 6 months, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a

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certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).
“(ii) DELEGATION.—Notwithstanding section 103, the
Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement.
“(iii) HEARING.—The Secretary of Homeland Security may
request that the Attorney General or the Attorney General's designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II).
“(D) RELEASE ON CONDITIONS.—If it is determined that an alien
should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may impose conditions on release as provided in paragraph (3).
“(E) REDETENTION.—The Secretary of Homeland Security, in the
exercise of the Secretary's discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody, if removal becomes likely in the reasonably foreseeable future, the alien fails to comply with the conditions of release, or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary, in the Secretary’s sole discretion, determines that the alien can be detained under subparagraph (B). This section shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention.
“(F) REVIEW OF DETERMINATIONS BY SECRETARY.—A
determination by the Secretary under this paragraph shall not be subject to review by any other agency.”.
(b) DETENTION OF ALIENS DURING REM OVAL PROCEEDINGS.—
(1) CLERICAL AMENDMENT.—Section 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended—
(A) by striking “Attorney General” each place it appears (except in the second place that term appears in subsection (a)) and inserting “Secretary of Homeland Security”;

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(B) in subsection (a) of such Act, by inserting “the Secretary of Homeland Security or” before “the Attorney General—”; and
(C) in subsection (e) by striking “Attorney General’s” and inserting “Secretary of Homeland Security’s”.
(2) LENGTH OF DETENTION.—Section 236 of such Act (8 U.S.C. 1226) is
amended by adding at the end the following:
“(f) LENGTH OF DETENTION.—
“(1) IN GENERAL.—Notwithstanding any other provision of this section,
an alien may be detained, and for an alien described in subsection (c) shall be detained, under this section without time limitation, except as provided in subsection (h), during the pendency of removal proceedings.
“(2) CONSTRUCTION.—The length of detention under this section shall
not affect detention under section 241.”.
(3) DETENTION OF CRIMINAL ALIENS.—Section 236(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) is amended to read as follows:
“(1) CUSTODY.—
“(A) IN GENERAL.—The Secretary of Homeland Security shall take
into custody any alien who is described in paragraph (2) or (3) of section 212(a), section 237(a)(2), section 237(a)(4), or who has no lawful status in the United States and has been convicted one or more times for driving while intoxicated (including a conviction for driving while under the influence or impaired by alcohol or drugs), any time after the alien is released, without regarding to whether—
“(i) an alien is released related to any activity, offense, or conviction described in this paragraph;
“(ii) the alien is released on parole, supervised release or probation; or
“(iii) the alien may be arrested or imprisoned again for the same offense.
“(B) SUBSEQUENT CUSTODY.—If the activity described in this
paragraph does not result in the alien being taken into custody by any person other than the Secretary of Homeland Security, then when the alien

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is brought to the attention of the Secretary or when the Secretary determines it is practical to take such alien into custody, the Secretary shall take such alien into custody.”.
(4) RELEASE ON BOND.—Section 236 of the Immigration and Nationality
Act (8 U.S.C. 1226), as amended by paragraph (2), is further amended by adding at the end the following:
“(g) RELEASE ON BOND.—
“(1) IN GENERAL.—An alien detained under subsection (a) may seek
release on bond. No bond may be granted except to an alien who establishes by clear and convincing evidence that the alien is not a flight risk or a risk to another person or the community.
“(2) CERTAIN ALIENS INELIGIBLE.—No alien detained under subsection
(c) may seek release on bond.”.
(5) CLERICAL AMENDMENTS.—Section 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended—
(A) in subsection (a)(2)(B), by striking “conditional parole;” and inserting “recognizance;”; and
(B) in subsection (b), by striking “parole” and inserting “recognizance”.
(c) SEVERABILITY.—If any of the provisions of this section or any amendment by this section, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this section and of amendments made by this section, and the application of the provisions and of the amendments made by this section to any other person or circumstance shall not be affected by such holding.
(d) EFFECTIVE DATES.—
(1) SUBSECTION (a).—The amendments made by subsection (a) shall take effect upon the date of enactment of this Act, and section 241 of the Immigration and Nationality Act, as so amended, shall in addition apply to—
(A) all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act; and
(B) acts and conditions occurring or existing before, on, or after such date.

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(2) SUBSECTION (b).—The amendments made by subsection (b) shall take effect upon the date of the enactment of this Act, and section 236 of the Immigration and Nationality Act, as so amended, shall in addition apply to any alien in detention under provisions of such section on or after such date.
SEC. 312. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN
GANG MEMBERS.
(a) DEFINITION OF GANG MEMBER.—Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:
“(53)(A) The term ‘criminal gang’ means an ongoing group, club, organization, or association of 5 or more persons that has as one of its primary purposes the commission of 1 or more of the following criminal offenses and the members of which engage, or have engaged within the past 5 years, in a continuing series of such offenses, or that has been designated as a criminal gang by the Secretary of Homeland Security, in consultation with the Attorney General, as meeting these criteria. The offenses described, whether in violation of Federal or State law or foreign law and regardless of whether the offenses occurred before, on, or after the date of the enactment of this paragraph, are the following:
“(i) A ‘felony drug offense’ (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
“(ii) An offense under section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose).
“(iii) A crime of violence (as defined in section 16 of title 18, United States Code).
“(iv) A crime involving obstruction of justice, tampering with or retaliating against a witness, victim, or informant, or burglary.
“(v) Any conduct punishable under sections 1028 and 1029 of title 18, United States Code (relating to fraud and related activity in connection with identification documents or access devices), sections 1581 through 1594 of such title (relating to peonage, slavery and trafficking in persons), section 1952 of such title (relating to interstate and foreign travel or transportation in aid of racketeering enterprises), section 1956 of such title (relating to the laundering of monetary instruments), section 1957 of such title (relating to engaging in monetary transactions in property derived from specified unlawful activity), or sections 2312 through 2315 of such title (relating to interstate transportation of stolen motor vehicles or stolen property).

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“(vi) A conspiracy to commit an offense described in clauses (i) through (v).
“(B) Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conduct occurred before, on, or after the date of the enactment of this paragraph.”.
(b) INADMISSIBILITY.—Section 212(a)(2) of such Act (8 U.S.C. 1182(a)(2)), as amended by section 302(a)(2) of this Act, is further amended by adding at the end the following:
“(O) ALIENS ASSOCIATED WITH CRIMINAL GANGS.—Any alien is
inadmissible who a consular officer, the Secretary of Homeland Security, or the Attorney General knows or has reason to believe—
“(i) to be or to have been a member of a criminal gang (as defined in section 101(a)(53)); or
“(ii) to have participated in the activities of a criminal gang (as defined in section 101(a)(53)), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.”.
(c) DEPORTABILITY.—Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)), as amended by section 302(c) of this Act, is further amended by adding at the end the following:
“(H) ALIENS ASSOCIATED WITH CRIMINAL GANGS.—Any alien is
deportable who the Secretary of Homeland Security or the Attorney General knows or has reason to believe—
“(i) is or has been a member of a criminal gang (as defined in section 101(a)(53)); or
“(ii) has participated in the activities of a criminal gang (as so defined), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.”.
(d) DESIGNATION.—
(1) IN GENERAL.—Chapter 2 of title II of the Immigration and Nationality
Act (8 U.S.C. 1182) is amended by inserting after section 219 the following:
“DESIGNATION

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“SEC. 220. (a) IN GENERAL.—The Secretary of Homeland Security, in consultation with the Attorney General, and the Secretary of State may designate a group or association as a criminal street gang if their conduct is described in section 101(a)(53) or if the group or association conduct poses a significant risk that threatens the security and the public safety of United States nationals or the national security, homeland security, foreign policy, or economy of the United States.
“(b) EFFECTIVE DATE.—Designations under subsection (a) shall remain in effect until the designation is revoked after consultation between the Secretary of Homeland Security, the Attorney General, and the Secretary of State or is terminated in accordance with Federal law.”.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is
amended by inserting after the item relating to section 219 the following:
“220. Designation.”.
(e) ANNUAL REPORT ON DETENTION OF CRIM INAL STREET GANG MEMBERS.—Not later than March 1 of each year (beginning 1 year after the date of the enactment of this Act), the Secretary of Homeland Security, after consultation with the appropriate Federal agencies, shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the number of aliens detained who are described by subparagraph (O) of section 212(a)(2) and subparagraph (H) of section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2) and 1227(a)(2)), as added by subsections (b) and (c).
(f) ASYLUM CLAIMS BASED ON GANG AFFILIATION.—
(1) INAPPLICABILITY OF RESTRICTION ON REMOVAL TO CERTAIN
COUNTRIES.—Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the matter preceding clause (i), by inserting “who is described in section 212(a)(2)(O)(i) or section 237(a)(2)(H) (i) or who is” after “to an alien”.
(2) INELIGIBILITY FOR ASYLUM.—Section 208(b)(2)(A) of such Act (8
U.S.C. 1158(b)(2)(A)) (as amended by this Act) is further amended—
(A) in clause (v), by striking “or” at the end;
(B) by redesignating clause (vi) as clause (vii); and
(C) by inserting after clause (v) the following:

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“(vi) the alien is described in section 212(a)(2)(O)(i) or section 237(a)(2)(H)(i) (relating to participation in criminal street gangs); or”.
(g) TEMPORARY PROTECTED STATUS.—Section 244 of such Act (8 U.S.C. 1254a) is amended—
(1) by striking “Attorney General” each place it appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (c)(2)(B)—
(A) in clause (i), by striking “States, or” and inserting “States;”;
(B) in clause (ii), by striking the period and inserting “; or”; and
(C) by adding at the end the following:
“(iii) the alien is, or at any time has been, an alien described in section 212(a)(2)(O)(i) or section 237(a)(2)(H)(i).”; and
(3) in subsection (d)—
(A) by striking paragraph (3); and
(B) in paragraph (4), by adding at the end the following: “The Secretary of Homeland Security may detain an alien provided temporary protected status under this section whenever appropriate under any other provision of law.”.
(h) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 313. EXTENSION OF IDENTITY THEFT OFFENSES.
Section 1028A of title 18, United States Code, is amended by adding at the end the following:
“(d) STATE OF MIND PROOF REQUIREMENT.—In a prosecution for a violation of subsection (a)(1) predicated on a violation described in subsection (c)(2), (6), (7), (9), or (10) of this section, the Government need not prove that the defendant knew the means of identification was of another person.”.
SEC. 314. LAUNDERING OF MONETARY INSTRUMENTS.

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(a) ADDITIONAL PREDICATE OFFENSES.—Section 1956(c)(7)(D) of title 18, United States Code, is amended—
(1) by inserting “section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor),” after “section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),”; and
(2) by inserting “section 274(a) of the Immigration and Nationality Act (8 U.S.C. 1324(a)) (relating to bringing in and harboring certain aliens),” after “section 590 of the Tariff Act of 1930 (19 U.S.C. 1590) (relating to aviation smuggling),”.
(b) INTENT TO CONCEAL OR DISGUISE.—Section 1956(a) of title 18, United States Code, is amended—
(1) in paragraph (1) so that subparagraph (B) reads as follows:
“(B) knowing that the transaction—
“(i) conceals or disguises, or is intended to conceal or disguise, the nature, source, location, ownership, or control of the proceeds of some form of unlawful activity; or
“(ii) avoids, or is intended to avoid, a transaction reporting requirement under State or Federal law,”; and
(2) in paragraph (2) so that subparagraph (B) reads as follows:
“(B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity, and knowing that such transportation, transmission, or transfer—
“(i) conceals or disguises, or is intended to conceal or disguise, the nature, source, location, ownership, or control of the proceeds of some form of unlawful activity; or
“(ii) avoids, or is intended to avoid, a transaction reporting requirement under State or Federal law,”.
SEC. 315. PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.
(a) IN GENERAL.—Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended to read as follows:

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“SEC. 275. (a) IN GENERAL.—
“(1) ILLEGAL ENTRY OR PRESENCE.—An alien shall be subject to the
penalties set forth in paragraph (2) if the alien—
“(A) knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;
“(B) knowingly eludes, at any time or place, examination or inspection by an authorized immigration, customs, or agriculture officer (including by failing to stop at the command of such officer);
“(C) knowingly enters or crosses the border to the United States and, upon examination or inspection, knowingly makes a false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws);
“(D) knowingly violates the terms or conditions of the alien’s admission or parole into the United States; or
“(E) knowingly is unlawfully present in the United States (as defined in section 212(a)(9)(B)(ii) subject to the exceptions set forth in section 212(a)(9)(B)(iii)).
“(2) CRIMINAL PENALTIES.—Any alien who violates any provision under
paragraph (1)—
“(A) shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;
“(B) shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years (or not more than 6 months in the case of a second or subsequent violation of paragraph (1)(E)), or both;
“(C) if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 10 years, or both;
“(D) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 15 years, or both; and

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“(E) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 20 years, or both.
“(3) PRIOR CONVICTIONS.—The prior convictions described in
subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—
“(A) alleged in the indictment or information; and
“(B) proven beyond a reasonable doubt at trial or admitted by the defendant.
“(4) DURATION OF OFFENSE.—An offense under this subsection
continues until the alien is discovered within the United States by an immigration, customs, or agriculture officer.
“(5) ATTEMPT.—Whoever attempts to commit any offense under this
section shall be punished in the same manner as for a completion of such offense.
“(b) IMPROPER TIME OR PLACE; CIVIL PENALTIES.—Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to—
“(1) not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; or
“(2) twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.”.
(b) CLERICAL AMENDMENT.—The table of contents for the Immigration and Nationality Act is amended by striking the item relating to section 275 and inserting the following:
“Sec. 275. Illegal entry or presence.”.
SEC. 316. ILLEGAL REENTRY.

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Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended to read as follows:
“REENTRY OF REMOVED ALIEN
“SEC. 276. (a) REENTRY AFTER REMOVAL.—Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.
“(b) REENTRY OF CRIMINAL OFFENDERS.—Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection was convicted before such removal or departure—
“(1) for 3 or more misdemeanors or for a felony, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;
“(2) for a felony for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not less than 2 years and not more than 15 years, or both;
“(3) for a felony for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not less than 4 years and not more than 20 years, or both; or
“(4) for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, or for 3 or more felonies of any kind, the alien shall be fined under such title, imprisoned not less than 5 years and not more than 25 years, or both.
“(c) REENTRY AFTER REPEATED REMOVAL.—Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.
“(d) PROOF OF PRIOR CONVICTIONS.—The prior convictions described in subsection (b) are elements of the crimes described, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—
“(1) alleged in the indictment or information; and

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“(2) proven beyond a reasonable doubt at trial or admitted by the defendant.
“(e) AFFIRMATIVE DEFENSES.—It shall be an affirmative defense to a violation of this section that—
“(1) prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States; or
“(2) with respect to an alien previously denied admission and removed, the alien—
“(A) was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act; and
“(B) had complied with all other laws and regulations governing the alien’s admission into the United States.
“(f) LIMITATION ON COLLATERAL ATTACK ON UNDERLYING REMOVAL ORDER.—In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien.
“(g) REENTRY OF ALIEN REMOVED PRIOR TO COMPLETION OF TERM OF IMPRISONMENT.—Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.
“(h) DEFINITIONS.—For purposes of this section and section 275, the following definitions shall apply:
“(1) CROSSES THE BORDER TO THE UNITED STATES.—The term ‘crosses
the border’ refers to the physical act of crossing the border, regardless of whether the alien is free from official restraint.
“(2) FELONY.—The term ‘felony’ means any criminal offense punishable
by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.

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“(3) MISDEMEANOR.—The term ‘misdemeanor’ means any criminal
offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.
“(4) REMOVAL.—The term ‘removal’ includes any denial of admission,
exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.
“(5) STATE.—The term ‘State’ means a State of the United States, the
District of Columbia, and any commonwealth, territory, or possession of the United States.”.
SEC. 317. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
Chapter 75 of title 18, United States Code, is amended to read as follows:
“CHAPTER 75—PASSPORTS AND VISAS
“1541. Issuance without authority. “1542. False statement in application and use of passport. “1543. Forgery or false use of passport. “1544. Misuse of a passport. “1545. Schemes to defraud aliens. “1546. Immigration and visa fraud. “1547. Attempts and conspiracies. “1548. Alternative penalties for certain offenses. “1549. Definitions.
“§ 1541. Issuance without authority
“(a) IN GENERAL.—Whoever—
“(1) acting or claiming to act in any office or capacity under the United States, or a State, without lawful authority grants, issues, or verifies any passport or other instrument in the nature of a passport to or for any person; or
“(2) being a consular officer authorized to grant, issue, or verify passports, knowingly grants, issues, or verifies any such passport to or for any person not owing allegiance, to the United States, whether a citizen or not;
shall be fined under this title or imprisoned not more than 15 years, or both.
“(b) DEFINITION.—In this section, the term ‘State’ means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
“§ 1542. False statement in application and use of passport

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“Whoever knowingly—
“(1) makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws; or
“(2) uses or attempts to use, or furnishes to another for use any passport the issue of which was secured in any way by reason of any false statement;
shall be fined under this title or imprisoned not more than 15 years, or both.
“§ 1543. Forgery or false use of passport
“Whoever—
“(1) falsely makes, forges, counterfeits, mutilates, or alters any passport or instrument purporting to be a passport, with intent that the same may be used; or
“(2) knowingly uses, or attempts to use, or furnishes to another for use any such false, forged, counterfeited, mutilated, or altered passport or instrument purporting to be a passport, or any passport validly issued which has become void by the occurrence of any condition therein prescribed invalidating the same;
shall be fined under this title or imprisoned not more than 15 years, or both.
“§ 1544. Misuse of a passport
“Whoever knowingly—
“(1) uses any passport issued or designed for the use of another;
“(2) uses any passport in violation of the conditions or restrictions therein contained, or in violation of the laws, regulations, or rules governing the issuance and use of the passport;
“(3) secures, possesses, uses, receives, buys, sells, or distributes any passport knowing it to be forged, counterfeited, altered, falsely made, procured by fraud, stolen, or produced or issued without lawful authority; or
“(4) violates the terms and conditions of any safe conduct duly obtained and issued under the authority of the United States;

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shall be fined under this title, imprisoned not more than 15 years, or both.
“§ 1545. Schemes to defraud aliens
“Whoever inside the United States, or in or affecting interstate or foreign commerce, in connection with any matter that is authorized by or arises under the immigration laws of the United States or any matter the offender claims or represents is authorized by or arises under the immigration laws of the United States, knowingly executes a scheme or artifice—
“(1) to defraud any person, or
“(2) to obtain or receive money or anything else of value from any person by means of false or fraudulent pretenses, representations, or promises;
shall be fined under this title, imprisoned not more than 15 years, or both.
“§ 1546. Immigration and visa fraud
“Whoever knowingly—
“(1) uses any immigration document issued or designed for the use of another;
“(2) forges, counterfeits, alters, or falsely makes any immigration document;
“(3) mails, prepares, presents, or signs any immigration document knowing it to contain any materially false statement or representation;
“(4) secures, possesses, uses, transfers, receives, buys, sells, or distributes any immigration document knowing it to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority;
“(5) adopts or uses a false or fictitious name to evade or to attempt to evade the immigration laws;
“(6) transfers or furnishes, without lawful authority, an immigration document to another person for use by a person other than the person for whom the immigration document was issued or designed; or
“(7) produces, issues, authorizes, or verifies, without lawful authority, an immigration document;
shall be fined under this title, imprisoned not more than 15 years, or both.

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“§ 1547. Attempts and conspiracies
“Whoever attempts or conspires to violate this chapter shall be punished in the same manner as a person who completes that violation.
“§ 1548. Alternative penalties for certain offenses
“(a) TERRORISM.—Whoever violates any section in this chapter to facilitate an act of international terrorism or domestic terrorism (as such terms are defined in section 2331), shall be fined under this title or imprisoned not more than 25 years, or both.
“(b) DRUG TRAFFICKING OFFENSES.—Whoever violates any section in this chapter to facilitate a drug trafficking crime (as defined in section 929(a)) shall be fined under this title or imprisoned not more than 20 years, or both.
“§ 1549. Definitions
“In this chapter:
“(1) An ‘application for a United States passport’ includes any document, photograph, or other piece of evidence attached to or submitted in support of the application.
“(2) The term ‘immigration document’ means any instrument on which is recorded, by means of letters, figures, or marks, matters which may be used to fulfill any requirement of the Immigration and Nationality Act.”.
SEC. 318. FORFEITURE.
Section 981(a)(1) of title 18, United States Code, is amended by adding at the end the following:
“(I) Any property, real or personal, that has been used to commit or facilitate the commission of a violation of chapter 75, the gross proceeds of such violation, and any property traceable to any such property or proceeds.”.
SEC. 319. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE ON CRIMINAL OR
SECURITY GROUNDS.
(a) IN GENERAL.—Section 238(b) of the Immigration and Nationality Act (8 U.S.C. 1228(b)) is amended–
(1) in paragraph (1)—

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(A) by striking “Attorney General” and inserting “Secretary of Homeland Security in the exercise of discretion”; and
(B) by striking “set forth in this subsection or” and inserting “set forth in this subsection, in lieu of removal proceedings under”;
(2) in paragraph (3), by striking “paragraph (1) until 14 calendar days” and inserting “paragraph (1) or (3) until 7 calendar days”;
(3) by striking “Attorney General” each place it appears in paragraphs (3) and (4) and inserting “Secretary of Homeland Security”;
(4) in paragraph (5)—
(A) by striking “described in this section” and inserting “described in paragraph (1) or (2)”; and
(B) by striking “the Attorney General may grant in the Attorney General’s discretion” and inserting “the Secretary of Homeland Security or the Attorney General may grant, in the discretion of the Secretary or Attorney General, in any proceeding”;
(5) by redesignating paragraphs (3), (4), and (5) as paragraphs (4), (5), and (6), respectively; and
(6) by inserting after paragraph (2) the following new paragraph:
“(3) The Secretary of Homeland Security in the exercise of discretion may determine inadmissibility under section 212(a)(2) (relating to criminal offenses) or section 212(a)(3) (related to security grounds) and issue an order of removal pursuant to the procedures set forth in this subsection, in lieu of removal proceedings under section 240, with respect to an alien who—
“(A) has not been admitted or paroled;
“(B) has not been found to have a credible fear of persecution pursuant to the procedures set forth in section 235(b)(1)(B); and
“(C) is not eligible for a waiver of inadmissibility or relief from removal.”.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act but shall not apply to aliens who are in removal proceedings under section 240 of the Immigration and Nationality Act as of such date.

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SEC. 320. INCREASED PENALTIES BARRING THE ADMISSION OF CONVICTED
SEX OFFENDERS FAILING TO REGISTER AND REQUIRING DEPORTATION OF SEX OFFENDERS FAILING TO REGISTER.
(a) INADMISSIBILITY.—Section 212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)), as amended by section 302(a) of this Act, is further amended—
(1) in subclause (II), by striking “or” at the end;
(2) in subclause (III), by adding “or” at the end; and
(3) by inserting after subclause (III) the following:
“(IV) a violation of section 2250 of title 18, United States Code (relating to failure to register as a sex offender),”.
(b) DEPORTABILITY.—Section 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)), as amended by sections 302(c) and 311(c) of this Act, is further amended—
(1) in subparagraph (A), by striking clause (v); and
(2) by adding at the end the following:
“(I) FAILURE TO REGISTER AS A SEX OFFENDER.—Any alien
convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of section 2250 of title 18, United States Code (relating to failure to register as a sex offender) is deportable.”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 321. PROTECTING IMMIGRANTS FROM CONVICTED SEX OFFENDERS.
(a) IMMIGRANTS.—Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), is amended—
(1) in subparagraph (A), by amending clause (viii) to read as follows:
“(viii) Clause (i) shall not apply to a citizen of the United States who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a) (43) or any offense defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses

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no risk to the alien with respect to whom a petition described in clause (i) is filed.”; and
(2) in subparagraph (B)(i)—
(A) by redesignating the second subclause (I) as subclause (II); and
(B) by amending such subclause (II) to read as follows:
“(II) Subclause (I) shall not apply in the case of an alien admitted for permanent residence who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the alien lawfully admitted for permanent residence poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.”.
(b) NONIMMIGRANTS.—Section 101(a)(15)(K) of such Act (8 U.S.C. 1101(a) (15)(K)), is amended by striking “204(a)(1)(A)(viii)(I))” each place such term appears and inserting “204(a)(1)(A)(viii))”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to petitions filed on or after such date.
SEC. 322. PENALTIES FOR FAILURE TO OBEY REMOVAL ORDERS.
(a) IN GENERAL.—Section 243(a) of the Immigration and Nationality Act (8 U.S.C. 1253(a)) is amended—
(1) in the matter preceding subparagraph (A) of paragraph (1), by inserting “212(a) or” before “237(a),”; and
(2) by striking paragraph (3).
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that are described in subparagraphs (A) through (D) of section 243(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1253(a)(1)) that occur on or after the date of the enactment of this Act.
SEC. 323. PARDONS.
(a) DEFINITION.—Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)), as amended by section 312(a) of this Act, is further amended by adding at the end the following:

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“(54) The term ‘pardon’ means a full and unconditional pardon granted by the President of the United States, Governor of any of the several States or constitutionally recognized body.”.
(b) DEPORTABILITY.—Section 237(a) of such Act (8 U.S.C. 1227(a)) is amended—
(1) in paragraph (2)(A), by striking clause (vi); and
(2) by adding at the end the following:
“(8) PARDONS.—In the case of an alien who has been convicted of a
crime and is subject to removal due to that conviction, if the alien, subsequent to receiving the criminal conviction, is granted a pardon, the alien shall not be deportable by reason of that criminal conviction.”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to a pardon granted before, on, or after such date.
SEC. 324. CONVICTIONS.
(a) IN GENERAL.—Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following subparagraph:
“(J) CONVICTIONS.—
“(i) IN GENERAL.—For purposes of determining whether an
underlying criminal offense constitutes a ground of inadmissibility under this subsection, all statutes or common law offenses are divisible so long as any of the conduct encompassed by the statute constitutes an offense that is a ground of inadmissibility.
“(ii) OTHER EVIDENCE.—If the conviction records do not
conclusively establish whether a crime constitutes a ground of inadmissibility, the Attorney General or the Secretary of Homeland Security may consider other evidence related to the conviction that clearly establishes that the conduct for which the alien was engaged constitutes a ground of inadmissibility.”.
(b) CRIMINAL OFFENSES.—Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following subparagraph:
“(G) CRIMINAL OFFENSES.—

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“(i) IN GENERAL.—For purposes of determining whether an
underlying criminal offense constitutes a ground of deportability under this subsection, all statutes or common law offenses are divisible so long as any of the conduct encompassed by the statute constitutes an offense that is a ground of deportability.
“(ii) OTHER EVIDENCE.—If the conviction records do not
conclusively establish whether a crime constitutes a ground of deportability, the Attorney General or the Secretary of Homeland Security may consider other evidence related to the conviction that clearly establishes that the conduct for which the alien was engaged constitutes a ground of deportability.”.
(c) FINALITY OF SENTENCES FOR IMMIGRATION PURPOSES.—Section 101(a) (48) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(48)) is amended by adding at the end the following subparagraph:
“(C) Any modification, clarification, vacatur, or any other such similar action with respect to an alien’s conviction, other than a full and complete pardon, made after the initiation of any proceedings to remove the alien from the United States shall have no effect for the purposes of this Act.”.
TITLE IV—VISA SECURITY
SEC. 401. CANCELLATION OF ADDITIONAL VISAS.
(a) IN GENERAL.—Section 222(g) of the Immigration and Nationality Act (8 U.S.C. 1202(g)) is amended—
(1) in paragraph (1)—
(A) by striking “Attorney General” and inserting “Secretary”; and
(B) by inserting “and any other nonimmigrant visa issued by the United States that is in the possession of the alien” after “such visa”; and
(2) in paragraph (2)(A), by striking “(other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality” and inserting “(other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality or foreign residence”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to a visa issued before, on, or after such date.

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SEC. 402. VISA INFORMATION SHARING.
(a) IN GENERAL.—Section 222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)(2)) is amended—
(1) by striking “issuance or refusal” and inserting “issuance, refusal, or revocation”;
(2) in paragraph (2), in the matter preceding subparagraph (A), by striking “and on the basis of reciprocity”;
(3) in paragraph (2)(A)—
(A) by inserting “(i)” after “for the purpose of”; and
(B) by striking “illicit weapons; or” and inserting “illicit weapons, or (ii) determining a person’s deportability or eligibility for a visa, admission, or other immigration benefit;”;
(4) in paragraph (2)(B)—
(A) by striking “for the purposes” and inserting “for one of the purposes”; and
(B) by striking “or to deny visas to persons who would be inadmissible to the United States.” and inserting “; or”; and
(5) in paragraph (2), by adding at the end the following:
“(C) with regard to any or all aliens in the database specified data elements from each record, if the Secretary of State determines that it is in the national interest to provide such information to a foreign government.”.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect 60 days after the date of the enactment of the Act.
SEC. 403. RESTRICTING WAIVER OF VISA INTERVIEWS.
Section 222(h) of the Immigration and Nationality Act (8 U.S.C. 1202(h)(1) (B)) is amended—
(1) in paragraph (1)(C), by inserting “, in consultation with the Secretary of Homeland Security,” after “if the Secretary”;

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(2) in paragraph (1)(C)(i), by inserting “, where such national interest shall not include facilitation of travel of foreign nationals to the United States, reduction of visa application processing times, or the allocation of consular resources” before the semicolon at the end; and
(3) in paragraph (2)—
(A) by striking “or” at the end of subparagraph (E);
(B) by striking the period at the end of subparagraph (F) and inserting “; or”; and
(C) by adding at the end the following:
“(G) is an individual—
“(i) determined to be in a class of aliens determined by the Secretary of Homeland Security to be threats to national security;
“(ii) identified by the Secretary of Homeland Security as a person of concern; or
“(iii) applying for a visa in a visa category with respect to which the Secretary of Homeland Security has determined that a waiver of the visa interview would create a high risk of degradation of visa program integrity.”.
SEC. 404. NON­INTERVIEW OF CERTAIN INELIGIBLE VISA APPLICANTS.
(a) IN GENERAL.—Section 222(h)(1) of the Immigration and Nationality Act (8 U.S.C. 1202(h)(1)) is amended by inserting “the alien is determined by the Secretary of State to be ineligible for a visa based upon review of the application or” after “unless”.
(b) GUIDANCE.—Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall issue guidance to consular officers on the standards and processes for implementing the authority to deny visa applications without interview in cases where the alien is determined by the Secretary of State to be ineligible for a visa based upon review of the application.
(c) REPORTS.—Not less frequently than once each quarter, the Secretary of State shall submit to the Congress a report on the denial of visa applications without interview, including—
(1) the number of such denials; and

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(2) a post­by­post breakdown of such denials.
SEC. 405. VISA REFUSAL AND REVOCATION.
(a) AUTHORITY OF THE SECRETARY OF HOM ELAND SECURITY AND THE SECRETARY OF STATE.—
(1) IN GENERAL.—Section 428 of the Homeland Security Act of 2002 (6
U.S.C. 236) is amended by striking subsections (b) and (c) and inserting the following:
“(b) AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY.—
“(1) IN GENERAL.—Notwithstanding section 104(a) of the Immigration
and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) and except for the authority of the Secretary of State under subparagraphs (A) and (G) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), the Secretary—
“(A) shall have exclusive authority to issue regulations, establish policy, and administer and enforce the provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and all other immigration or nationality laws relating to the functions of consular officers of the United States in connection with the granting and refusal of a visa; and
“(B) may refuse or revoke any visa to any alien or class of aliens if the Secretary, or designee, determines that such refusal or revocation is necessary or advisable in the security or foreign policy interests of the United States.
“(2) EFFECT OF REVOCATION.—The revocation of any visa under
paragraph (1)(B)—
“(A) shall take effect immediately; and
“(B) shall automatically cancel any other valid visa that is in the alien’s possession.
“(3) JUDICIAL REVIEW.—Notwithstanding any other provision of law,
including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a decision by the Secretary of Homeland Security to refuse or revoke a visa, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a refusal or revocation.
“(c) AUTHORITY OF THE SECRETARY OF STATE.—

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“(1) IN GENERAL.—The Secretary of State may direct a consular officer
to refuse a visa requested by an alien if the Secretary of State determines such refusal to be necessary or advisable in the security or foreign policy interests of the United States.
“(2) LIMITATION.—No decision by the Secretary of State to approve a
visa may override a decision by the Secretary of Homeland Security under subsection (b).”.
(2) CONFORMING AMENDMENT.—Section 237(a)(1)(B) of the
Immigration and Nationality Act (8 U.S.C. 1227(a)(1)(B)) is amended by striking “under section 221(i)”.
(3) EFFECTIVE DATE.—The amendment made by paragraph (1) shall take
effect on the date of the enactment of this Act and shall apply to visa refusals and revocations occurring before, on, or after such date.
(b) TECHNICAL CORRECTIONS TO THE HOMELAND SECURITY ACT.—Section 428(a) of the Homeland Security Act of 2002 (6 U.S.C. 236(a)) is amended by—
(1) striking “subsection” and inserting “section”; and
(2) striking “consular office” and inserting “consular officer”.
SEC. 406. FUNDING FOR THE VISA SECURITY PROGRAM.
(a) IN GENERAL.—The Department of State and Related Agency Appropriations Act, 2005 (title IV of division B of Public Law 108–447) is amended, in the fourth paragraph under the heading “Diplomatic and Consular Programs”, by striking “Beginning” and all that follows through the period at the end and inserting the following: “Beginning in fiscal year 2005 and thereafter, the Secretary of State is authorized to charge surcharges related to consular services in support of enhanced border security that are in addition to the immigrant visa fees in effect on January 1, 2004: Provided, That funds collected pursuant to this authority shall be credited to the appropriation for U.S. Immigration and Customs Enforcement for the fiscal year in which the fees were collected, and shall be available until expended for the funding of the Visa Security Program established by the Secretary of Homeland Security under section 428(e) of the Homeland Security Act of 2002 (Public Law 107–296): Provided further, That such surcharges shall be 10 percent of the fee assessed on immigrant visa applications.”.
(b) REPAYMENT OF APPROPRIATED FUNDS.—Twenty percent of the funds collected each fiscal year under the heading “Diplomatic and Consular Programs” in the Department of State and Related Agency Appropriations Act, 2005 (title IV of division B of Public Law 108–447), as amended by subsection (a), shall be

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deposited into the general fund of the Treasury as repayment of funds appropriated pursuant to section 407(c) of this Act until the entire appropriated sum has been repaid.
SEC. 407. EXPEDITIOUS EXPANSION OF VISA SECURITY PROGRAM TO HIGH­
RISK POSTS.
(a) IN GENERAL.—Section 428(i) of the Homeland Security Act of 2002 (6 U.S.C. 236(i)) is amended to read as follows:
“(i) VISA ISSUANCE AT DESIGNATED HIGH­RISK POSTS.—Notwithstanding any other provision of law, the Secretary of Homeland Security shall conduct an on­ site review of all visa applications and supporting documentation before adjudication at the top 30 visa­issuing posts designated jointly by the Secretaries of State and Homeland Security as high­risk posts.”.
(b) ASSIGNMENT OF PERSONNEL.—Not later than one year after the date of enactment of this section, the Secretary of Homeland Security shall assign personnel to the visa­issuing posts referenced in section 428(i) of the Homeland Security Act of 2002 (6 U.S.C. 236(i)), as amended by this section, and communicate such assignments to the Secretary of State.
(c) APPROPRIATIONS.—There is authorized to be appropriated $60,000,000 for each of the fiscal years 2015 and 2016, which shall be used to expedite the implementation of section 428(i) of the Homeland Security Act, as amended by this section.
SEC. 408. EXPEDITED CLEARANCE AND PLACEMENT OF DEPARTMENT OF
HOMELAND SECURITY PERSONNEL AT OVERSEAS EMBASSIES AND CONSULAR POSTS.
Section 428 of the Homeland Security Act of 2002 (6 U.S.C. 236) is amended by adding at the end the following:
“(j) EXPEDITED CLEARANCE AND PLACEM ENT OF DEPARTM ENT OF HOMELAND SECURITY PERSONNEL AT OVERSEAS EMBASSIES AND CONSULAR POSTS.—Notwithstanding any other provision of law, and the processes set forth in National Security Defense Directive 38 (dated June 2, 1982) or any successor Directive, the Chief of Mission of a post to which the Secretary of Homeland Security has assigned personnel under subsection (e) or (i) shall ensure, not later than one year after the date on which the Secretary of Homeland Security communicates such assignment to the Secretary of State, that such personnel have been stationed and accommodated at post and are able to carry out their duties.”.
SEC. 409. ACCREDITATION REQUIREMENTS.

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(a) COLLEGES, UNIVERSITIES, AND LANGUAGE TRAINING PROGRAM S.— Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended—
(1) in paragraph (15)(F)(i)—
(A) by striking “section 214(l) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States” and inserting “section 214(m) at an accredited college, university, or language training program, or at an established seminary, conservatory, academic high school, elementary school, or other academic institution in the United States”;
(B) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”; and
(C) by striking “and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn,” and inserting “and if any such institution of learning of place of study fails to make reports promptly or fails to comply with any accreditation requirement (including deadlines for submitting accreditation applications or obtaining accreditation) the approval shall be withdrawn,”; and
(2) by amending paragraph (52) to read as follows:
“(52) Except as provided in section 214(m)(4), the term ‘accredited college, university, or language training program’ means a college, university, or language training program that is accredited by an accrediting agency recognized by the Secretary of Education.”.
(b) OTHER ACADEMIC INSTITUTIONS.—Section 214(m) of the Immigration and Nationality Act (8 U.S.C. 1184(m)) is amended by adding at the end the following:
“(3) The Secretary of Homeland Security shall require accreditation of an academic institution (except for seminaries or other religious institutions) for purposes of section 101(a)(15)(F) if—
“(A) that institution is not already required to be accredited under section 101(a)(15)(F)(i); and
“(B) an appropriate accrediting agency recognized by the Secretary of Education is able to provide such accreditation.
“(4) The Secretary of Homeland Security, in the Secretary’s discretion, may waive the accreditation requirement in paragraph (3) or section 101(a)(15)(F)(i)

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with respect to an institution if such institution—
“(A) is otherwise in compliance with the requirements of section 101(a) (15)(F)(i); and
“(B) has been a candidate for accreditation for at least 1 year and continues to progress toward accreditation by an accrediting agency recognized by the Secretary of Education.”.
(c) EFFECTIVE DATE.—
(1) IN GENERAL.—Except as provided in paragraph (2), the amendments
made by this section shall—
(A) take effect on the date that is 180 days after the date of enactment of this Act; and
(B) apply with respect to applications for nonimmigrant visas that are filed on or after the effective date described in subparagraph (A).
(2) TEMPORARY EXCEPTION.—During the 3­year period beginning on
the effective date described in paragraph (1)(A), an institution that is newly required to be accredited under this section may continue to participate in the Student and Exchange Visitor Program notwithstanding the institution’s lack of accreditation if the institution—
(A) was certified under the Student and Exchange Visitor Program on such date;
(B) submitted an application for accreditation to an accrediting agency recognized by the Secretary of Education during the 6­month period ending on such date; and
(C) continues to progress toward accreditation by such accrediting agency.
SEC. 410. VISA FRAUD.
(a) TEMPORARY SUSPENSION OF SEVIS ACCESS.—Section 641(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)) is amended—
(1) in paragraph (1)(A), by striking “institution,,” and inserting “institution,”; and
(2) by adding at the end the following:

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“(3) EFFECT OF REASONABLE SUSPICION OF FRAUD.—If the Secretary of
Homeland Security has reasonable suspicion that an owner of, or a designated school official at, an approved institution of higher education, an other approved educational institution, or a designated exchange visitor program has committed fraud or attempted to commit fraud relating to any aspect of the Student and Exchange Visitor Program (SEVP), the Secretary may immediately suspend, without notice, such official’s or such school’s access to the Student and Exchange Visitor Information System (SEVIS), including the ability to issue Form I–20s, pending a final determination by the Secretary with respect to the institution’s certification under the Student and Exchange Visitor Program.”.
(b) EFFECT OF CONVICTION FOR VISA FRAUD.—Such section 641(d), as amended by subsection (a)(2), is further amended by adding at the end the following:
“(4) PERMANENT DISQUALIFICATION FOR FRAUD.—A designated school
official at, or an owner of, an approved institution of higher education, an other approved educational institution, or a designated exchange visitor program who is convicted for fraud relating to any aspect of the Student and Exchange Visitor Program shall be permanently disqualified from filing future petitions and from having an ownership interest or a management role, including serving as a principal, owner, officer, board member, general partner, designated school official, or any other position of substantive authority for the operations or management of the institution, in any United States educational institution that enrolls nonimmigrant alien students described in subparagraph (F) or (M) of section 101(a)(15) the Immigration and Nationality Act (8 U.S.C. 1101(a) (15)).”.
SEC. 411. BACKGROUND CHECKS.
(a) IN GENERAL.—Section 641(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by section 411(b) of this Act, is further amended by adding at the end the following:
“(5) BACKGROUND CHECK REQUIREMENT.—
“(A) IN GENERAL.—An individual may not serve as a designated
school official or be granted access to SEVIS unless the individual is a national of the United States or an alien lawfully admitted for permanent residence and during the most recent 3­year period—
“(i) the Secretary of Homeland Security has—

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“(I) conducted a thorough background check on the individual, including a review of the individual’s criminal and sex offender history and the verification of the individual’s immigration status; and
“(II) determined that the individual has not been convicted of any violation of United States immigration law and is not a risk to national security of the United States; and
“(ii) the individual has successfully completed an on­line training course on SEVP and SEVIS, which has been developed by the Secretary.
“(B) INTERIM DESIGNATED SCHOOL OFFICIAL.—
“(i) IN GENERAL.—An individual may serve as an interim
designated school official during the period that the Secretary is conducting the background check required by subparagraph (A)(i)(I).
“(ii) REVIEWS BY THE SECRETARY.—If an individual serving
as an interim designated school official under clause (i) does not successfully complete the background check required by subparagraph (A)(i)(I), the Secretary shall review each Form I–20 issued by such interim designated school official.
“(6) FEE.—The Secretary is authorized to collect a fee from an approved
school for each background check conducted under paragraph (6)(A)(i). The amount of such fee shall be equal to the average amount expended by the Secretary to conduct such background checks.”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date that is 1 year after the date of the enactment of this Act.
SEC. 412. NUMBER OF DESIGNATED SCHOOL OFFICIALS.
Section 641(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by section 412(a) of this Act, is further amended by adding at the end the following:
“(7) NUMBER OF DESIGNATED SCHOOL OFFICIALS.—School officials
may nominate as many Designated School Officials (DSOs) in addition to the school’s Principal Designated School Official (PDSO) as they determine necessary to adequately provide recommendations to students enrolled at the school regarding maintenance of nonimmigrant status under subparagraph (F) or (M) of section 101(a)(15) and to support timely and complete recordkeeping

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and reporting to the Secretary of Homeland Security, as required by this section, except that a school may not have less than one DSO per every 200 students who have nonimmigrant status pursuant to subparagraph (F), (J), or (M) of such section. School officials shall not permit a DSO or PDSO nominee access to SEVIS until the Secretary approves the nomination.”.
SEC. 413. REPORTING REQUIREMENT.
Section 442(a) of the Homeland Security Act of 2002 (6 U.S.C. 252(a)) is amended—
(1) by redesignating paragraph (5) as paragraph (6); and
(2) by inserting after paragraph (4) the following:
“(5) STUDENT AND EXCHANGE VISITOR PROGRAM.—In administering
the program under paragraph (4), the Secretary shall, not later than one year after the date of the enactment of this paragraph, prescribe regulations to require an institution or exchange visitor program sponsor participating in the Student Exchange Visitor Program to ensure that each student or exchange visitor who has nonimmigrant status pursuant to subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (15)) enrolled at the institution or attending the exchange visitor program is reported to the Department within 10 days of—
“(A) transferring to another institution or program;
“(B) changing academic majors; or
“(C) any other changes to information required to be maintained in the system described in paragraph (4).”.
SEC. 414. FLIGHT SCHOOLS NOT CERTIFIED BY FAA.
(a) IN GENERAL.—Except as provided in subsection (b), the Secretary of Homeland Security shall prohibit any flight school in the United States from accessing SEVIS or issuing a Form I–20 to an alien seeking a student visa pursuant to subparagraph (F)(i) or (M)(i) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) if the flight school has not been certified to the satisfaction of the Secretary and by the Federal Aviation Administration pursuant to part 141 or part 142 of title 14, Code of Federal Regulations (or similar successor regulations).
(b) TEMPORARY EXCEPTION.—During the 5­year period beginning on the date of the enactment of this Act, the Secretary may waive the requirement under

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subsection (a) that a flight school be certified by the Federal Aviation Administration if such flight school—
(1) was certified under the Student and Exchange Visitor Program on the date of the enactment of this Act;
(2) submitted an application for certification with the Federal Aviation Administration during the 1­year period beginning on such date; and
(3) continues to progress toward certification by the Federal Aviation Administration.
SEC. 415. REVOCATION OF ACCREDITATION.
At the time an accrediting agency or association is required to notify the Secretary of Education and the appropriate State licensing or authorizing agency of the final denial, withdrawal, suspension, or termination of accreditation of an institution pursuant to section 496 of the Higher Education Act of 1965 (20 U.S.C. 1099b), such accrediting agency or association shall notify the Secretary of Homeland Security of such determination and the Secretary of Homeland Security shall immediately terminate the school’s Student and Exchange Visitor Program (SEVP) certification and prohibit the school from accessing the Student and Exchange Visitor Information System (SEVIS).
SEC. 416. REPORT ON RISK ASSESSMENT.
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that contains the risk assessment strategy that will be employed by the Secretary to identify, investigate, and take appropriate action against schools and school officials that are facilitating the issuance of Form I–20 and the maintenance of student visa status in violation of the immigration laws of the United States.
SEC. 417. IMPLEMENTATION OF GAO RECOMMENDATIONS.
Not later than 180 days after the date of the enactment of this act, the Secretary of Homeland Security shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that describes—
(1) the process in place to identify and assess risks in the SEVP;
(2) a risk assessment process to allocate SEVP’s resources based on risk;

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(3) the procedures in place for consistently ensuring a school’s eligibility, including consistently verifying in lieu of letters;
(4) how SEVP identified and addressed missing school case files;
(5) a plan to develop and implement a process to monitor State licensing and accreditation status of all SEVP­certified schools;
(6) whether all flight schools that have not been certified to the satisfaction of the Secretary and by the Federal Aviation Administration have been removed from the program and have been restricted from accessing SEVIS;
(7) the standard operating procedures that govern coordination among SEVP, the U.S. Immigration and Customs Enforcement (ICE) Counterterrorism and Criminal Exploitation Unit, and ICE field offices; and
(8) the established criteria for referring cases of a potentially criminal nature from SEVP to the counterterrorism and intelligence community.
SEC. 418. IMPLEMENTATION OF SEVIS II.
Not later than 2 years after the date of the enactment of this Act, the Secretary of Homeland Security shall complete the deployment of both phases of the 2nd generation Student and Exchange Visitor Information System (commonly known as “SEVIS II”).
SEC. 419. DEFINITIONS.
(a) DEFINITIONS.—For purposes of this title:
(1) SEVIS.—The term “SEVIS” means the Student and Exchange Visitor
Information System of the Department of Homeland Security.
(2) SEVP.—The term “SEVP” means the Student and Exchange Visitor
Program of the Department of Homeland Security.
TITLE V—AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
SEC. 501. ICE IMMIGRATION ENFORCEMENT AGENTS.
(a) IN GENERAL.—The Secretary of Homeland Security shall authorize all immigration enforcement agents and deportation officers of the Department of Homeland Security who have successfully completed basic immigration law enforcement training to exercise the powers conferred by—

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(1) section 287(a)(5)(A) of the Immigration and Nationality Act to arrest for any offense against the United States;
(2) section 287(a)(5)(B) of such Act to arrest for any felony;
(3) section 274(a) of such Act to arrest for bringing in, transporting, or harboring certain aliens, or inducing them to enter;
(4) section 287(a) of such Act to execute warrants of arrest for administrative immigration violations issued under section 236 of the Act or to execute warrants of criminal arrest issued under the authority of the United States; and
(5) section 287(a) of such Act to carry firearms, provided that they are individually qualified by training and experience to handle and safely operate the firearms they are permitted to carry, maintain proficiency in the use of such firearms, and adhere to the provisions of the enforcement standard governing the use of force.
(b) ARREST POWERS.—Section 287(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1357(a)(2)) is amended by striking “regulation and is likely to escape before a warrant can be obtained for his arrest,” and inserting “regulation,”.
(c) PAY.—Immigration enforcement agents shall be paid on the same scale as Immigration and Customs Enforcement deportation officers and shall receive the same benefits.
SEC. 502. ICE DETENTION ENFORCEMENT OFFICERS.
(a) AUTHORIZATION.—The Secretary of Homeland Security is authorized to hire 2,500 Immigration and Customs Enforcement detention enforcement officers.
(b) DUTIES.—Immigration and Customs Enforcement detention enforcement officers who have successfully completed detention enforcement officers’ basic training shall be responsible for—
(1) taking and maintaining custody of any person who has been arrested by an immigration officer;
(2) transporting and guarding immigration detainees;
(3) securing Department of Homeland Security detention facilities; and
(4) assisting in the processing of detainees.
SEC. 503. ENSURING THE SAFETY OF ICE OFFICERS AND AGENTS.

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(a) BODY ARMOR.—The Secretary of Homeland Security shall ensure that every Immigration and Customs Enforcement deportation officer and immigration enforcement agent on duty is issued high­quality body armor that is appropriate for the climate and risks faced by the agent. Enough body armor must be purchased to cover every agent in the field.
(b) WEAPONS.—Such Secretary shall ensure that Immigration and Customs Enforcement deportation officers and immigration enforcement agents are equipped with weapons that are reliable and effective to protect themselves, their fellow agents, and innocent third parties from the threats posed by armed criminals. Such weapons shall include, at a minimum, standard­issue handguns, M–4 (or equivalent) rifles, and Tasers.
(c) EFFECTIVE DATE.—This section shall take effect 90 days after the date of the enactment of this Act.
SEC. 504. ICE ADVISORY COUNCIL.
(a) ESTABLISHMENT.—An ICE Advisory Council shall be established not later than 3 months after the date of the enactment of this Act.
(b) MEMBERSHIP.—The ICE Advisor Council shall be comprised of 7 members.
(c) APPOINTMENT.—Members shall to be appointed in the following manner:
(1) One member shall be appointed by the President.
(2) One member shall be appointed by the Chairman of the Judiciary Committee of the House of Representatives.
(3) One member shall be appointed by the Chairman of the Judiciary Committee of the Senate.
(4) One member shall be appointed by the Local 511, the ICE prosecutor’s union.
(5) Three members shall be appointed by the National Immigration and Customs Enforcement Council.
(d) TERM.—Members shall serve renewable, 2­year terms.
(e) VOLUNTARY.—Membership shall be voluntary and non­remunerated, except that members will receive reimbursement from the Secretary of Homeland Security for travel and other related expenses.

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(f) RETALIATION PROTECTION.—Members who are employed by the Secretary of Homeland Security shall be protected from retaliation by their supervisors, managers, and other Department of Homeland Security employees for their participation on the Council.
(g) PURPOSE.—The purpose of the Council is to advise the Congress and the Secretary of Homeland Security on issues including the following:
(1) The current status of immigration enforcement efforts, including prosecutions and removals, the effectiveness of such efforts, and how enforcement could be improved.
(2) The effectiveness of cooperative efforts between the Secretary of Homeland Security and other law enforcement agencies, including additional types of enforcement activities that the Secretary should be engaged in, such as State and local criminal task forces.
(3) Personnel, equipment, and other resource needs of field personnel.
(4) Improvements that should be made to the organizational structure of the Department of Homeland Security, including whether the position of immigration enforcement agent should be merged into the deportation officer position.
(5) The effectiveness of specific enforcement policies and regulations promulgated by the Secretary of Homeland Security, and whether other enforcement priorities should be considered.
(h) REPORTS.—The Council shall provide quarterly reports to the Chairmen and Ranking Members of the Judiciary Committees of the Senate and the House of Representatives and to the Secretary of Homeland Security. The Council members shall meet directly with the Chairmen and Ranking Members (or their designated representatives) and with the Secretary to discuss their reports every 6 months.
SEC. 505. PILOT PROGRAM FOR ELECTRONIC FIELD PROCESSING.
(a) IN GENERAL.—The Secretary of Homeland Security shall establish a pilot program in at least five of the ten Immigration and Customs Enforcement field offices with the largest removal caseloads to allow Immigration and Customs deportation officers and immigration enforcement agents to—
(1) electronically process and serve charging documents, including Notices to Appear, while in the field; and
(2) electronically process and place detainers while in the field.

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(b) DUTIES.—The pilot program described in subsection (a) shall be designed to allow deportation officers and immigration enforcement agents to use handheld or vehicle­mounted computers to—
(1) enter any required data, including personal information about the alien subject and the reason for issuing the document;
(2) apply the electronic signature of the issuing officer or agent;
(3) set the date the alien is required to appear before an immigration judge, in the case of Notices to Appear;
(4) print any documents the alien subject may be required to sign, along with additional copies of documents to be served on the alien; and
(5) interface with the ENFORCE database so that all data is stored and retrievable.
(c) CONSTRUCTION.—The pilot program described in subsection (a) shall be designed to replace, to the extent possible, the current paperwork and data­entry process used for issuing such charging documents and detainers.
(d) DEADLINE.—The Secretary shall initiate the pilot program described in subsection (a) within 6 months of the date of enactment of this Act.
(e) REPORT.—The Government Accountability Office shall report to the Judiciary Committee of the Senate and the House of Representatives no later than 18 months after the date of enactment of this Act on the effectiveness of the pilot program and provide recommendations for improving it.
(f) ADVISORY COUNCIL.—The ICE Advisory Council established by section 504 shall include recommendations on how the pilot program should work in the first quarterly report of the Council, and shall include assessments of the program and recommendations for improvement in each subsequent report.
(g) EFFECTIVE DATE.—This section shall take effect 180 days after the date of the enactment of this Act.
SEC. 506. ADDITIONAL ICE DEPORTATION OFFICERS AND SUPPORT STAFF.
(a) IN GENERAL.—The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for full­time active­duty Immigration and Customs Enforcement deportation officers by 5,000 above the number of full­time positions for which funds were appropriated for fiscal year 2013. The Secretary will determine the rate at which the additional officers will be added with due regard to filling the positions as expeditiously as

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possible without making any compromises in the selection or the training of the additional officers.
(b) SUPPORT STAFF.—The Secretary shall, subject to the availability of appropriations for such purpose, increase the number of positions for full­time support staff for Immigration and Customs Enforcement deportation officers by 700 above the number of full­time positions for which funds were appropriated for fiscal year 2013.
SEC. 507. ADDITIONAL ICE PROSECUTORS.
The Secretary of Homeland Security shall increase by 60 the number of full­ time trial attorneys working for the Immigration and Customs Enforcement Office of the Principal Legal Advisor.
TITLE VI—MISCELLANEOUS ENFORCEMENT PROVISIONS
SEC. 601. TIMELY REPATRIATION.
(a) LISTING OF COUNTRIES.—Beginning on the date that is 6 months after the date of enactment of this Act, and every 6 months thereafter, the Secretary of Homeland Security shall publish a report including the following:
(1) A list of the following:
(A) Countries that have refused or unreasonably delayed repatriation of an alien who is a national of that country since the date of enactment of this Act and the total number of such aliens, disaggregated by nationality.
(B) Countries that have an excessive repatriation failure rate.
(2) A list of each country that was included under subparagraph (B) or (C) of paragraph (1) in both the report preceding the current report and the current report.
(b) SANCTIONS.—Beginning on the date that a country is included in a list under subsection (a)(2) and ending on the date that such country is not included in such list, such country shall be subject to the following:
(1) The Secretary of State may not issue visas under section 101(a)(15)(A) (iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii)) to attendants, servants, personal employees, and members of their immediate families, of the officials and employees of such country who receive

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nonimmigrant status under clause (i) or (ii) of section 101(a)(15)(A) of such Act.
(2) Each 6 months thereafter that the country is included in that list, the Secretary of State shall reduce the number of visas available under clause (i) or (ii) of section 101(a)(15)(A) of the Immigration and Nationality Act in a fiscal year to nationals of that country by an amount equal to 10 percent of the baseline visa number for such country. Except as provided under section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253), the Secretary may not reduce the number to a level below 20 percent of the baseline visa number.
(c) WAIVERS.—
(1) NATIONAL SECURITY WAIVER.—If the Secretary of State submits to
Congress a written determination that significant national security interests of the United States require a waiver of the sanctions under subsection (b), the Secretary may waive any reduction below 80 percent of the baseline visa number. The Secretary of Homeland Security may not delegate the authority under this subsection.
(2) TEMPORARY EXIGENT CIRCUMSTANCES.—If the Secretary of State
submits to Congress a written determination that temporary exigent circumstances require a waiver of the sanctions under subsection (b), the Secretary may waive any reduction below 80 percent of the baseline visa number during 6­month renewable periods. The Secretary of Homeland Security may not delegate the authority under this subsection.
(d) EXEMPTION.—The Secretary of Homeland Security, in consultation with the Secretary of State, may exempt a country from inclusion in a list under subsection (a)(2) if the total number of nonrepatriations outstanding is less than 10 for the preceding 3­year period.
(e) UNAUTHORIZED VISA ISSUANCE.—Any visa issued in violation of this section shall be void.
(f) NOTICE.—If an alien who has been convicted of a criminal offense before a Federal or State court whose repatriation was refused or unreasonably delayed is to be released from detention by the Secretary of Homeland Security, the Secretary shall provide notice to the State and local law enforcement agency for the jurisdictions in which the alien is required to report or is to be released. When possible, and particularly in the case of violent crime, the Secretary shall make a reasonable effort to provide notice of such release to any crime victims and their immediate family members.
(g) DEFINITIONS.—For purposes of this section:

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(1) REFUSED OR UNREASONABLY DELAYED.—A country is deemed to
have refused or unreasonably delayed the acceptance of an alien who is a citizen, subject, national, or resident of such country if, not later than 90 days after receiving a request to repatriate such alien from an official of the United States who is authorized to make such a request, the country does not accept the alien or issue valid travel documents.
(2) FAILURE RATE.—The term “failure rate” for a period means the
percentage determined by dividing the total number of repatriation requests for aliens who are citizens, subjects, nationals, or residents of a country that such country refused or unreasonably delayed during that period by the total number of such requests during that period.
(3) EXCESSIVE REPATRIATION FAILURE RATE.—The term “excessive
repatriation failure rate” means, with respect to a report under subsection (a), a failure rate greater than 10 percent for any of the following:
(A) The period of the 3 full fiscal years preceding the date of publication of the report.
(B) The period of 1 year preceding the date of publication of the report.
(4) NUMBER OF NON­REPATRIATIONS OUTSTANDING.—The term
“number of non­repatriations outstanding” means, for a period, the number of unique aliens whose repatriation a country has refused or unreasonably delayed and whose repatriation has not occurred during that period.
(5) BASELINE VISA NUMBER.—The term “baseline visa number” means,
with respect to a country, the average number of visas issued each fiscal year to nationals of that country under clauses (i) and (ii) of section 101(a)(15)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)) for the 3 full fiscal years immediately preceding the first report under subsection (a) in which such country is included in the list under subsection (a)(2).
(h) GAO REPORT.—On the date that is 1 day after the date that the President submits a budget under section 1105(a) of title 31, United States Code, for fiscal year 2016, the Comptroller General of the United States shall submit a report to Congress regarding the progress of the Secretary of Homeland Security and the Secretary of State in implementation of this section and in making requests to repatriate aliens as appropriate.
SEC. 602. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.

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(a) IN GENERAL.—Section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended—
(1) in subsection (a)—
(A) by amending paragraph (1) to read as follows:
“(1) INSTEAD OF REMOVAL PROCEEDINGS.—If an alien is not described
in paragraph (2)(A)(iii) or (4) of section 237(a), the Secretary of Homeland Security may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection instead of being subject to proceedings under section 240.”;
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph (3);
(D) by adding after paragraph (1) the following:
“(2) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS.—If an
alien is not described in paragraph (2)(A)(iii) or (4) of section 237(a), the Attorney General may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.”;
(E) in paragraph (3), as redesignated—
(i) by amending subparagraph (A) to read as follows:
“(A) INSTEAD OF REMOVAL.—Subject to subparagraph (C),
permission to voluntarily depart under paragraph (1) shall not be valid for any period in excess of 120 days. The Secretary may require an alien permitted to voluntarily depart under paragraph (1) to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.”;
(ii) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively;
(iii) by adding after subparagraph (A) the following:
“(B) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS.—
Permission to voluntarily depart under paragraph (2) shall not be valid for any period in excess of 60 days, and may be granted only after a finding that the alien has the means to depart the United States and intends to do

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so. An alien permitted to voluntarily depart under paragraph (2) shall post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.”;
(iv) in subparagraph (C), as redesignated, by striking “subparagraphs (C) and (D)(ii)” and inserting “subparagraphs (D) and (E)(ii)”;
(v) in subparagraph (D), as redesignated, by striking “subparagraph (B)” each place that term appears and inserting “subparagraph (C)”; and
(vi) in subparagraph (E), as redesignated, by striking “subparagraph (B)” each place that term appears and inserting “subparagraph (C)”; and
(F) in paragraph (4), by striking “paragraph (1)” and inserting “paragraphs (1) and (2)”;
(2) in subsection (b)(2), by striking “a period exceeding 60 days” and inserting “any period in excess of 45 days”;
(3) by amending subsection (c) to read as follows:
“(c) CONDITIONS ON VOLUNTARY DEPARTURE.—
“(1) VOLUNTARY DEPARTURE AGREEMENT.—Voluntary departure may
only be granted as part of an affirmative agreement by the alien. A voluntary departure agreement under subsection (b) shall include a waiver of the right to any further motion, appeal, application, petition, or petition for review relating to removal or relief or protection from removal.
“(2) CONCESSIONS BY THE SECRETARY.—In connection with the alien’s
agreement to depart voluntarily under paragraph (1), the Secretary of Homeland Security may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).
“(3) ADVISALS.—Agreements relating to voluntary departure granted
during removal proceedings under section 240, or at the conclusion of such proceedings, shall be presented on the record before the immigration judge. The immigration judge shall advise the alien of the consequences of a voluntary departure agreement before accepting such agreement.
“(4) FAILURE TO COMPLY WITH AGREEMENT.—

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“(A) IN GENERAL.—If an alien agrees to voluntary departure under
this section and fails to depart the United States within the time allowed for voluntary departure or fails to comply with any other terms of the agreement (including failure to timely post any required bond), the alien is —
“(i) ineligible for the benefits of the agreement;
“(ii) subject to the penalties described in subsection (d); and
“(iii) subject to an alternate order of removal if voluntary departure was granted under subsection (a)(2) or (b).
“(B) EFFECT OF FILING TIMELY APPEAL.—If, after agreeing to
voluntary departure, the alien files a timely appeal of the immigration judge’s decision granting voluntary departure, the alien may pursue the appeal instead of the voluntary departure agreement. Such appeal operates to void the alien’s voluntary departure agreement and the consequences of such agreement, but precludes the alien from another grant of voluntary departure while the alien remains in the United States.
“(5) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED.—Except as
expressly agreed to by the Secretary in writing in the exercise of the Secretary’s discretion before the expiration of the period allowed for voluntary departure, no motion, appeal, application, petition, or petition for review shall affect, reinstate, enjoin, delay, stay, or toll the alien’s obligation to depart from the United States during the period agreed to by the alien and the Secretary.”;
(4) by amending subsection (d) to read as follows:
“(d) PENALTIES FOR FAILURE TO DEPART.—If an alien is permitted to voluntarily depart under this section and fails to voluntarily depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the alien will be subject to the following penalties:
“(1) CIVIL PENALTY.—The alien shall be liable for a civil penalty of
$3,000. The order allowing voluntary departure shall specify this amount, which shall be acknowledged by the alien on the record. If the Secretary thereafter establishes that the alien failed to depart voluntarily within the time allowed, no further procedure will be necessary to establish the amount of the penalty, and the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law. An alien will be ineligible for any benefits under this chapter until this civil penalty is paid.

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“(2) INELIGIBILITY FOR RELIEF.—The alien shall be ineligible during the
time the alien remains in the United States and for a period of 10 years after the alien’s departure for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.
“(3) REOPENING.—The alien shall be ineligible to reopen the final order
of removal that took effect upon the alien’s failure to depart, or upon the alien’s other violations of the conditions for voluntary departure, during the period described in paragraph (2). This paragraph does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion—
“(A) presents material evidence of changed country conditions arising after the date of the order granting voluntary departure in the country to which the alien would be removed; and
“(B) makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.”;
(5) by amending subsection (e) to read as follows:
“(e) ELIGIBILITY.—
“(1) PRIOR GRANT OF VOLUNTARY DEPARTURE.—An alien shall not be
permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily.
“(2) RULEMAKING.—The Secretary may promulgate regulations to limit
eligibility or impose additional conditions for voluntary departure under subsection (a)(1) for any class of aliens. The Secretary or Attorney General may by regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(2) or (b) of this section for any class or classes of aliens.”; and
(6) in subsection (f), by adding at the end the following: “Notwithstanding section 242(a)(2)(D) of this Act, sections 1361, 1651, and 2241 of title 28, United States Code, any other habeas corpus provision, and any other provision of law (statutory or nonstatutory), no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or toll the period allowed for voluntary departure under this section.”.
(b) RULEMAKING.—The Secretary shall within one year of the date of enactment of this Act promulgate regulations to provide for the imposition and

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collection of penalties for failure to depart under section 240B(d) of the Immigration and Nationality Act (8 U.S.C. 1229c(d)).
(c) EFFECTIVE DATES.—
(1) IN GENERAL.—Except as provided in paragraph (2), the amendments
made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that is 180 days after the enactment of this Act.
(2) EXCEPTION.—The amendment made by subsection (a)(6) shall take
effect on the date of the enactment of this Act and shall apply with respect to any petition for review which is filed on or after such date.
SEC. 603. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE
UNITED STATES UNLAWFULLY.
(a) INADMISSIBLE ALIENS.—Section 212(a)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(A)) is amended—
(1) in clause (i), by striking “seeks admission within 5 years of the date of such removal (or within 20 years” and inserting “seeks admission not later than 5 years after the date of the alien’s removal (or not later than 20 years after the alien’s removal”; and
(2) in clause (ii), by striking “seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of” and inserting “seeks admission not later than 10 years after the date of the alien’s departure or removal (or not later than 20 years after”.
(b) BAR ON DISCRETIONARY RELIEF.—Section 274D of such Act (8 U.S.C. 324d) is amended—
(1) in subsection (a), by striking “Commissioner” and inserting “Secretary of Homeland Security”; and
(2) by adding at the end the following:
“(c) INELIGIBILITY FOR RELIEF.—
“(1) IN GENERAL.—Unless a timely motion to reopen is granted under
section 240(c)(6), an alien described in subsection (a) shall be ineligible for any discretionary relief from removal (including cancellation of removal and adjustment of status) during the time the alien remains in the United States and for a period of 10 years after the alien’s departure from the United States.

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“(2) SAVINGS PROVISION.—Nothing in paragraph (1) shall preclude a
motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion—
“(A) presents material evidence of changed country conditions arising after the date of the final order of removal in the country to which the alien would be removed; and
“(B) makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.”.
(c) EFFECTIVE DATES.—The amendments made by this section shall take effect on the date of the enactment of this Act with respect to aliens who are subject to a final order of removal entered before, on, or after such date.
SEC. 604. REINSTATEMENT OF REMOVAL ORDERS.
(a) IN GENERAL.—Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:
“(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS
ILLEGALLY REENTERING.—If the Secretary of Homeland Security finds that an alien has entered the United States illegally after having been removed, deported, or excluded or having departed voluntarily, under an order of removal, deportation, or exclusion, regardless of the date of the original order or the date of the illegal entry—
“(A) the order of removal, deportation, or exclusion is reinstated from its original date and is not subject to being reopened or reviewed notwithstanding section 242(a)(2)(D);
“(B) the alien is not eligible and may not apply for any relief under this Act, regardless of the date that an application or request for such relief may have been filed or made; and
“(C) the alien shall be removed under the order of removal, deportation, or exclusion at any time after the illegal entry.
Reinstatement under this paragraph shall not require proceedings under section 240 or other proceedings before an immigration judge.”.
(b) JUDICIAL REVIEW.—Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended by adding at the end the following:
“(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER SECTION 241(a)(5).—

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“(1) REVIEW OF REINSTATEMENT.—Judicial review of determinations
under section 241(a)(5) is available in an action under subsection (a).
“(2) NO REVIEW OF ORIGINAL ORDER.—Notwithstanding any other
provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, any other habeas corpus provision, or sections 1361 and 1651 of such title, no court shall have jurisdiction to review any cause or claim, arising from, or relating to, any challenge to the original order.”.
(c) EFFECTIVE DATE.—The amendments made by subsections (a) and (b) shall take effect as if enacted on April 1, 1997, and shall apply to all orders reinstated or after that date by the Secretary of Homeland Security (or by the Attorney General prior to March 1, 2003), regardless of the date of the original order.
SEC. 605. CLARIFICATION WITH RESPECT TO DEFINITION OF ADMISSION.
Section 101(a)(13)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(13)(A)) is amended by adding at the end the following: “An alien’s adjustment of status to that of lawful permanent resident status under any provision of this Act, or under any other provision of law, shall be considered an ‘admission’ for any purpose under this Act, even if the adjustment of status occurred while the alien was present in the United States.”.
SEC. 606. REPORTS TO CONGRESS.
(a) IN GENERAL.—Not later than 30 days after the end of each quarter of a fiscal year, the Secretary of Homeland Security and the Attorney General shall each provide to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the following:
(1) Aliens apprehended or arrested by State or local law enforcement agencies who were identified by the Department of Homeland Security in the previous quarter and for whom the Department of Homeland Security did not issue detainers and did not take into custody despite the Department of Homeland Security’s findings that the aliens were inadmissible or deportable.
(2) Aliens who were applicants for admission in the previous quarter but not clearly and beyond a doubt entitled to be admitted by an immigration officer and who were not detained as required pursuant to section 235(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(2)(A)).
(3) Aliens who in the previous quarter were found by Department of Homeland Security officials performing duties related to the adjudication of applications for immigration benefits or the enforcement of the immigration laws to be inadmissible or deportable who were not issued notices to appear

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pursuant to section 239 of such Act (8 U.S.C. 1229) or placed into removal proceedings pursuant to section 240 (8 U.S.C. 1229a), unless the aliens were placed into expedited removal proceedings pursuant to section 235(b)(1)(A)(i) (8 U.S.C. 1225(b)(1)(A)(5)) or section 238 (8 U.S.C. 1228), were granted voluntary departure pursuant to section 240B, were granted relief from removal pursuant to statute, were granted legal nonimmigrant or immigrant status pursuant to statute, or were determined not to be inadmissible or deportable.
(4) Aliens issued notices to appear that were cancelled in the previous quarter despite the Department of Homeland Security’s findings that the aliens were inadmissible or deportable, unless the aliens were granted relief from removal pursuant to statute, were granted voluntary departure pursuant to section 240B of such Act (8 U.S.C. 1229c), or were granted legal nonimmigrant or immigrant status pursuant to statute.
(5) Aliens who were placed into removal proceedings, whose removal proceedings were terminated or administratively closed in the previous quarter prior to their conclusion, unless the aliens were granted relief from removal pursuant to statute, were granted voluntary departure pursuant to section 240B, were granted legal nonimmigrant or immigrant status pursuant to statute, or were determined not to be inadmissible or deportable.
(6) Aliens granted parole pursuant to section 212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).
(7) Aliens granted deferred action, extended voluntary departure or any other type of relief from removal not specified in the Immigration and Nationality Act or where determined not to be inadmissible or deportable.
(8) Aliens released from custody, including the number of releases, the number of aliens who were released who have a criminal history, the general reasons for release, the conditions of release, and the zip codes of the last known addresses.
(9) Aliens granted an administrative stay of removal, or otherwise permitted to remain in the United States through any similar process by U.S. Immigration and Customs Enforcement.
(b) CONTENTS OF REPORT.—The report shall include a listing of each alien described in each paragraph of subsection (a), including when in the possession of the Department of Homeland Security their names, fingerprint identification numbers, alien registration numbers, and reason why each was granted the type of prosecutorial discretion received. The report shall also include current criminal histories on each alien from the Federal Bureau of Investigation.

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SEC. 607. CERTAIN ACTIVITIES RESTRICTED.
(a) IN GENERAL.—
(1) PROHIBITION ON USE OF FUNDS.—No funds, resources, or fees made
available to the Secretary of Homeland Security, or to any other official of a Federal agency, by this Act or any other Act for any fiscal year, including any deposits into the “Immigration Examinations Fee Account” established under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)), may be used to implement, administer, enforce, or carry out (including through the issuance of any regulations) any of the policy changes set forth in the following memoranda (or any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action):
(A) The memorandum from the Director of United States Immigration and Customs Enforcement entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” dated March 2, 2011.
(B) The memorandum from the Director of United States Immigration and Customs Enforcement entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” dated June 17, 2011.
(C) The memorandum from the Principal Legal Advisor of United States Immigration and Customs Enforcement entitled “Case­by­Case Review of Incoming and Certain Pending Cases” dated November 17, 2011.
(D) The memorandum from the Director of United States Immigration and Customs Enforcement entitled “Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems” dated December 21, 2012.
(E) The memorandum from the Secretary of Homeland Security entitled “Southern Border and Approaches Campaign” dated November 20, 2014.
(F) The memorandum from the Secretary of Homeland Security entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” dated November 20, 2014.

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(G) The memorandum from the Secretary of Homeland Security entitled “Secure Communities” dated November 20, 2014.
(H) The memorandum from the Secretary of Homeland Security entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents” dated November 20, 2014.
(I) The memorandum from the Secretary of Homeland Security entitled “Expansion of the Provisional Waiver Program” dated November 20, 2014.
(J) The memorandum from the Secretary of Homeland Security entitled “Policies Supporting U.S. High­Skilled Businesses and Workers” dated November 20, 2014.
(K) The memorandum from the Secretary of Homeland Security entitled “Families of U.S. Armed Forces Members and Enlistees” dated November 20, 2014.
(L) The memorandum from the Secretary of Homeland Security entitled “Directive to Provide Consistency Regarding Advance Parole” dated November 20, 2014.
(M) The memorandum from the Secretary of Homeland Security entitled “Policies to Promote and Increase Access to U.S. Citizenship” dated November 20, 2014.
(N) The memorandum from the President entitled “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century” dated November 21, 2014.
(O) The memorandum from the President entitled “Creating Welcoming Communities and Fully Integrating Immigrants and Refugees” dated November 21, 2014.
(2) NO LEGAL EFFECT.—The memoranda referred to in subsection (a) (or
any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action) have no statutory or constitutional basis and therefore have no legal effect.
(3) PROHIBITION ON FEDERAL BENEFITS.—No funds or fees made
available to the Secretary of Homeland Security, or to any other official of a

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Federal agency, by this Act or any other Act for any fiscal year, including any deposits into the “Immigration Examinations Fee Account” established under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)), may be used to grant any Federal benefit to any alien pursuant to any of the policy changes set forth in the memoranda referred to in subsection (a) (or any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action).
(b) DEFERRED ACTION FOR CHILDHOOD ARRIVALS.—No funds, resources, or fees made available to the Secretary of Homeland Security, or to any other official of a Federal agency, by this Act or any other Act for any fiscal year, including any deposits into the “Immigration Examinations Fee Account” established under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)), may be used to consider or adjudicate any new, renewal, or previously denied application for any alien requesting consideration of deferred action pursuant to the guidance in the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (or any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action).
SEC. 608. GAO STUDY ON DEATHS IN CUSTODY.
The Comptroller General of the United States shall submit to Congress within 6 months after the date of the enactment of this Act, a report on the deaths in custody of detainees held by the Department of Homeland Security. The report shall include the following information with respect to any such deaths and in connection therewith:
(1) Whether any such deaths could have been prevented by the delivery of medical treatment administered while the detainee is in the custody of the Department of Homeland Security.
(2) Whether Department practice and procedures were properly followed and obeyed.
(3) Whether such practice and procedures are sufficient to protect the health and safety of such detainees.
(4) Whether reports of such deaths were made to the Deaths in Custody Reporting Program.
SEC. 609. REMOVAL PROCEEDINGS.

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Subsection (b) of section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) is amended by adding at the end the following paragraph:
“(8) ORDER OF CONSIDERATION OF PROCEEDINGS.—Whenever
possible, proceedings shall take place in the order in which aliens are placed in proceedings.”.
SEC. 610. ELIMINATING BACKLOG IN THE IMMIGRATION COURT SYSTEM.
Section 240A(e) of the Immigration and Nationality Act (8 U.S.C. 1229b(e)) is amended—
(1) in paragraph (1), by striking “(2) and (3),” and inserting “(2), (3), and (4),”; and
(2) by adding at the end the following paragraph:
“(4) PROHIBITION ON DELAY.—The Attorney General may not, except
for in cases in which the Attorney General has decided to grant an application under this section and the fiscal year cap has been reached, in any way delay or suspend making a final decision for an application submitted under this section.”.
SEC. 611. PROPER FILING OF INCOME TAXES REQUIRED FOR GOOD MORAL
CHARACTER.
Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended by inserting after paragraph (1) the following paragraph:
“(2) one who has failed to properly file an income tax return for each year that one was required to be filed;”.

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EXHIBIT C

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I
H. R. 1148 114TH CONGRESS 1ST SESSION
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 27, 2015
Mr. GOWDY (for himself, Mr. GOODLATTE, Mr. SMITH of Texas, Mr. COLLINS of Georgia, Mr. POE of Texas, Mr. FORBES, Mr. CARTER of Texas, and Mr. CHABOT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes.

1

Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4

This Act may be cited as the ‘‘Michael Davis, Jr. in

5 Honor of State and Local Law Enforcement Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7

The table of contents for this Act is as follows:

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2
Sec. 1. Short title. Sec. 2. Table of contents.
TITLE I—IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES
Sec. 101. Definitions and severability. Sec. 102. Immigration law enforcement by States and localities. Sec. 103. Listing of immigration violators in the national crime information
center database. Sec. 104. Technology access. Sec. 105. State and local law enforcement provision of information about appre-
hended aliens. Sec. 106. Financial assistance to State and local police agencies that assist in
the enforcement of immigration laws. Sec. 107. Increased Federal detention space. Sec. 108. Federal custody of inadmissible and deportable aliens in the United
States apprehended by State or local law enforcement. Sec. 109. Training of State and local law enforcement personnel relating to the
enforcement of immigration laws. Sec. 110. Immunity. Sec. 111. Criminal alien identification program. Sec. 112. Clarification of congressional intent. Sec. 113. State criminal alien assistance program (SCAAP). Sec. 114. State violations of enforcement of immigration laws. Sec. 115. Clarifying the authority of ICE detainers.
TITLE II—NATIONAL SECURITY
Sec. 201. Removal of, and denial of benefits to, terrorist aliens. Sec. 202. Terrorist bar to good moral character. Sec. 203. Terrorist bar to naturalization. Sec. 204. Denaturalization for terrorists. Sec. 205. Use of 1986 IRCA legalization information for national security pur-
poses. Sec. 206. Background and security checks. Sec. 207. Technical amendments relating to the Intelligence Reform and Ter-
rorism Prevention Act of 2004.
TITLE III—REMOVAL OF CRIMINAL ALIENS
Sec. 301. Definition of aggravated felony. Sec. 302. Precluding admissibility of aliens convicted of aggravated felonies or
other serious offenses. Sec. 303. Espionage clarification. Sec. 304. Prohibition of the sale of firearms to, or the possession of firearms
by, certain aliens. Sec. 305. Uniform statute of limitations for certain immigration, naturalization,
and peonage offenses. Sec. 306. Conforming amendment to the definition of racketeering activity. Sec. 307. Conforming amendments for the aggravated felony definition. Sec. 308. Precluding refugee or asylee adjustment of status for aggravated fel-
ons. Sec. 309. Precluding withholding of removal for aggravated felons. Sec. 310. Inadmissibility, deportability, and detention of drunk drivers. Sec. 311. Detention of dangerous aliens.
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3
Sec. 312. Grounds of inadmissibility and deportability for alien gang members. Sec. 313. Extension of identity theft offenses. Sec. 314. Laundering of monetary instruments. Sec. 315. Penalties for illegal entry or presence. Sec. 316. Illegal reentry. Sec. 317. Reform of passport, visa, and immigration fraud offenses. Sec. 318. Forfeiture. Sec. 319. Expedited removal for aliens inadmissible on criminal or security
grounds. Sec. 320. Increased penalties barring the admission of convicted sex offenders
failing to register and requiring deportation of sex offenders failing to register. Sec. 321. Protecting immigrants from convicted sex offenders. Sec. 322. Clarification to crimes of violence and crimes involving moral turpitude. Sec. 323. Penalties for failure to obey removal orders. Sec. 324. Pardons. Sec. 325. Convictions.
TITLE IV—VISA SECURITY
Sec. 401. Cancellation of additional visas. Sec. 402. Visa information sharing. Sec. 403. Restricting waiver of visa interviews. Sec. 404. Authorizing the Department of State to not interview certain ineli-
gible visa applicants. Sec. 405. Visa refusal and revocation. Sec. 406. Funding for the visa security program. Sec. 407. Expeditious expansion of visa security program to high-risk posts. Sec. 408. Expedited clearance and placement of Department of Homeland Se-
curity personnel at overseas embassies and consular posts. Sec. 409. Accreditation requirements. Sec. 410. Visa fraud. Sec. 411. Background checks. Sec. 412. Number of designated school officials. Sec. 413. Reporting requirement. Sec. 414. Flight schools not certified by FAA. Sec. 415. Revocation of accreditation. Sec. 416. Report on risk assessment. Sec. 417. Implementation of GAO recommendations. Sec. 418. Implementation of SEVIS II. Sec. 419. Definitions.
TITLE V—AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
Sec. 501. ICE immigration enforcement agents. Sec. 502. ICE detention enforcement officers. Sec. 503. Ensuring the safety of ICE officers and agents. Sec. 504. ICE Advisory Council. Sec. 505. Pilot program for electronic field processing. Sec. 506. Additional ICE deportation officers and support staff. Sec. 507. Additional ICE prosecutors.
TITLE VI—MISCELLANEOUS ENFORCEMENT PROVISIONS
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4
Sec. 601. Timely repatriation. Sec. 602. Encouraging aliens to depart voluntarily. Sec. 603. Deterring aliens ordered removed from remaining in the United
States unlawfully. Sec. 604. Reinstatement of removal orders. Sec. 605. Clarification with respect to definition of admission. Sec. 606. Reports to Congress on the exercise and abuse of prosecutorial discre-
tion. Sec. 607. Certain activities restricted. Sec. 608. GAO study on deaths in custody. Sec. 609. Removal proceedings.
1 TITLE I—IMMIGRATION LAW EN-
2 FORCEMENT BY STATES AND
3 LOCALITIES

4 SEC. 101. DEFINITIONS AND SEVERABILITY.

5

(a) STATE DEFINED.—For the purposes of this title,

6 the term ‘‘State’’ has the meaning given to such term in

7 section 101(a)(36) of the Immigration and Nationality Act

8 (8 U.S.C. 1101(a)(36)).

9

(b) SECRETARY DEFINED.—For the purpose of this

10 title, the term ‘‘Secretary’’ means the Secretary of Home-

11 land Security.

12

(c) SEVERABILITY.—If any provision of this title, or

13 the application of such provision to any person or cir-

14 cumstance, is held invalid, the remainder of this title, and

15 the application of such provision to other persons not simi-

16 larly situated or to other circumstances, shall not be af-

17 fected by such invalidation.

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5 1 SEC. 102. IMMIGRATION LAW ENFORCEMENT BY STATES

2

AND LOCALITIES.

3

(a) IN GENERAL.—Subject to section 274A(h)(2) of

4 the Immigration and Nationality Act (8 U.S.C.

5 1324a(h)(2)), States, or political subdivisions of States,

6 may enact, implement and enforce criminal penalties that

7 penalize the same conduct that is prohibited in the crimi-

8 nal provisions of immigration laws (as defined in section

9 101(a)(17) of the Immigration and Nationality Act (8

10 U.S.C. 1101(a)(17))), as long as the criminal penalties do

11 not exceed the relevant Federal criminal penalties (without

12 regard to ancillary issues such as the availability of proba-

13 tion or pardon). States, or political subdivisions of States,

14 may enact, implement and enforce civil penalties that pe-

15 nalize the same conduct that is prohibited in the civil pro-

16 visions of immigration laws (as defined in such section

17 101(a)(17)), as long as the civil penalties do not exceed

18 the relevant Federal civil penalties.

19

(b) LAW ENFORCEMENT PERSONNEL.—Subject to

20 section 274A(h)(2) of the Immigration and Nationality

21 Act (8 U.S.C. 1324a(h)(2)), law enforcement personnel of

22 a State, or of a political subdivision of a State, may inves-

23 tigate, identify, apprehend, arrest, detain, or transfer to

24 Federal custody aliens for the purposes of enforcing the

25 immigration laws of the United States to the same extent

26 as Federal law enforcement personnel. Law enforcement

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6

1 personnel of a State, or of a political subdivision of a

2 State, may also investigate, identify, apprehend, arrest, or

3 detain aliens for the purposes of enforcing the immigration

4 laws of a State or of a political subdivision of State, as

5 long as those immigration laws are permissible under this

6 section. Law enforcement personnel of a State, or of a po-

7 litical subdivision of a State, may not admit aliens to or

8 remove them from the United States.

9 SEC. 103. LISTING OF IMMIGRATION VIOLATORS IN THE NA-

10

TIONAL CRIME INFORMATION CENTER DATA-

11

BASE.

12

(a) PROVISION OF INFORMATION TO THE NCIC.—

13 Not later than 180 days after the date of the enactment

14 of this Act and periodically thereafter as updates may re-

15 quire, the Secretary shall provide the National Crime In-

16 formation Center of the Department of Justice with all

17 information that the Secretary may possess regarding any

18 alien against whom a final order of removal has been

19 issued, any alien who has entered into a voluntary depar-

20 ture agreement, any alien who has overstayed their au-

21 thorized period of stay, and any alien whose visa has been

22 revoked. The National Crime Information Center shall

23 enter such information into the Immigration Violators File

24 of the National Crime Information Center database, re-

25 gardless of whether—

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1

(1) the alien received notice of a final order of

2

removal;

3

(2) the alien has already been removed; or

4

(3) sufficient identifying information is avail-

5

able with respect to the alien.

6

(b) INCLUSION OF INFORMATION IN THE NCIC

7 DATABASE.—

8

(1) IN GENERAL.—Section 534(a) of title 28,

9

United States Code, is amended—

10

(A) in paragraph (3), by striking ‘‘and’’ at

11

the end;

12

(B) by redesignating paragraph (4) as

13

paragraph (5); and

14

(C) by inserting after paragraph (3) the

15

following:

16

‘‘(4) acquire, collect, classify, and preserve

17

records of violations by aliens of the immigration

18

laws of the United States, regardless of whether any

19

such alien has received notice of the violation or

20

whether sufficient identifying information is avail-

21

able with respect to any such alien or whether any

22

such alien has already been removed from the

23

United States; and’’.

24

(2) EFFECTIVE DATE.—The Attorney General

25

and the Secretary shall ensure that the amendment

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8

1

made by paragraph (1) is implemented by not later

2

than 6 months after the date of the enactment of

3

this Act.

4 SEC. 104. TECHNOLOGY ACCESS.

5

States shall have access to Federal programs or tech-

6 nology directed broadly at identifying inadmissible or de-

7 portable aliens.

8 SEC. 105. STATE AND LOCAL LAW ENFORCEMENT PROVI-

9

SION OF INFORMATION ABOUT APPRE-

10

HENDED ALIENS.

11

(a) PROVISION OF INFORMATION.—In compliance

12 with section 642(a) of the Illegal Immigration Reform and

13 Immigrant Responsibility Act of 1996 (8 U.S.C. 1373)

14 and section 434 of the Personal Responsibility and Work

15 Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644),

16 each State, and each political subdivision of a State, shall

17 provide the Secretary of Homeland Security in a timely

18 manner with the information specified in subsection (b)

19 with respect to each alien apprehended in the jurisdiction

20 of the State, or in the political subdivision of the State,

21 who is believed to be inadmissible or deportable.

22

(b) INFORMATION REQUIRED.—The information re-

23 ferred to in subsection (a) is as follows:

24

(1) The alien’s name.

25

(2) The alien’s address or place of residence.

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1

(3) A physical description of the alien.

2

(4) The date, time, and location of the encoun-

3

ter with the alien and reason for stopping, detaining,

4

apprehending, or arresting the alien.

5

(5) If applicable, the alien’s driver’s license

6

number and the State of issuance of such license.

7

(6) If applicable, the type of any other identi-

8

fication document issued to the alien, any designa-

9

tion number contained on the identification docu-

10

ment, and the issuing entity for the identification

11

document.

12

(7) If applicable, the license plate number,

13

make, and model of any automobile registered to, or

14

driven by, the alien.

15

(8) A photo of the alien, if available or readily

16

obtainable.

17

(9) The alien’s fingerprints, if available or read-

18

ily obtainable.

19

(c) ANNUAL REPORT ON REPORTING.—The Sec-

20 retary shall maintain and annually submit to the Congress

21 a detailed report listing the States, or the political subdivi-

22 sions of States, that have provided information under sub-

23 section (a) in the preceding year.

24

(d) REIMBURSEMENT.—The Secretary shall reim-

25 burse States, and political subdivisions of a State, for all

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10

1 reasonable costs, as determined by the Secretary, incurred

2 by the State, or the political subdivision of a State, as

3 a result of providing information under subsection (a).

4

(e) CONSTRUCTION.—Nothing in this section shall re-

5 quire law enforcement officials of a State, or of a political

6 subdivision of a State, to provide the Secretary with infor-

7 mation related to a victim of a crime or witness to a crimi-

8 nal offense.

9

(f) EFFECTIVE DATE.—This section shall take effect

10 on the date that is 120 days after the date of the enact-

11 ment of this Act and shall apply with respect to aliens

12 apprehended on or after such date.

13 SEC. 106. FINANCIAL ASSISTANCE TO STATE AND LOCAL

14

POLICE AGENCIES THAT ASSIST IN THE EN-

15

FORCEMENT OF IMMIGRATION LAWS.

16

(a) GRANTS FOR SPECIAL EQUIPMENT FOR HOUSING

17 AND PROCESSING CERTAIN ALIENS.—From amounts

18 made available to make grants under this section, the Sec-

19 retary shall make grants to States, and to political subdivi-

20 sions of States, for procurement of equipment, technology,

21 facilities, and other products that facilitate and are di-

22 rectly related to investigating, apprehending, arresting,

23 detaining, or transporting aliens who are inadmissible or

24 deportable, including additional administrative costs in-

25 curred under this title.

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1

(b) ELIGIBILITY.—To be eligible to receive a grant

2 under this section, a State, or a political subdivision of

3 a State, must have the authority to, and shall have a writ-

4 ten policy and a practice to, assist in the enforcement of

5 the immigration laws of the United States in the course

6 of carrying out the routine law enforcement duties of such

7 State or political subdivision of a State. Entities covered

8 under this section may not have any policy or practice that

9 prevents local law enforcement from inquiring about a sus-

10 pect’s immigration status.

11

(c) GAO AUDIT.—Not later than 3 years after the

12 date of the enactment of this Act, the Comptroller General

13 of the United States shall conduct an audit of funds dis-

14 tributed to States, and to political subdivisions of a State,

15 under subsection (a).

16 SEC. 107. INCREASED FEDERAL DETENTION SPACE.

17

(a) CONSTRUCTION OR ACQUISITION OF DETENTION

18 FACILITIES.—

19

(1) IN GENERAL.—The Secretary shall con-

20

struct or acquire, in addition to existing facilities for

21

the detention of aliens, detention facilities in the

22

United States, for aliens detained pending removal

23

from the United States or a decision regarding such

24

removal. Each facility shall have a number of beds

25

necessary to effectuate the purposes of this title.

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12

1

(2) DETERMINATIONS.—The location of any de-

2

tention facility built or acquired in accordance with

3

this subsection shall be determined by the Secretary.

4

(b) TECHNICAL AND CONFORMING AMENDMENT.—

5 Section 241(g)(1) of the Immigration and Nationality Act

6 (8 U.S.C. 1231(g)(1)) is amended by striking ‘‘may ex-

7 pend’’ and inserting ‘‘shall expend’’.

8 SEC. 108. FEDERAL CUSTODY OF INADMISSIBLE AND DE-

9

PORTABLE ALIENS IN THE UNITED STATES

10

APPREHENDED BY STATE OR LOCAL LAW EN-

11

FORCEMENT.

12

(a) STATE APPREHENSION.—

13

(1) IN GENERAL.—Title II of the Immigration

14

and Nationality Act (8 U.S.C. 1151 et seq.) is

15

amended by inserting after section 240C the fol-

16

lowing:

17 ‘‘CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS

18

PRESENT IN THE UNITED STATES

19

‘‘SEC. 240D. (a) TRANSFER OF CUSTODY BY STATE

20 AND LOCAL OFFICIALS.—If a State, or a political subdivi-

21 sion of the State, exercising authority with respect to the

22 apprehension or arrest of an inadmissible or deportable

23 alien submits to the Secretary of Homeland Security a re-

24 quest that the alien be taken into Federal custody, not-

25 withstanding any other provision of law, regulation, or pol-

26 icy the Secretary—

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13

1

‘‘(1) shall take the alien into custody not later

2

than 48 hours (excluding Saturdays, Sundays, and

3

holidays) after the detainer has been issued following

4

the conclusion of the State or local charging process

5

or dismissal process, or if no State or local charging

6

or dismissal process is required, the Secretary

7

should issue a detainer and take the alien into cus-

8

tody not later than 48 hours (excluding Saturdays,

9

Sundays, and holidays) after the alien is appre-

10

hended, in order to determine whether the alien

11

should be detained, placed in removal proceedings,

12

released, or removed; and

13

‘‘(2) shall request that the relevant State or

14

local law enforcement agency temporarily hold the

15

alien in their custody or transport the alien for

16

transfer to Federal custody.

17

‘‘(b) POLICY ON DETENTION IN FEDERAL, CON-

18 TRACT, STATE, OR LOCAL DETENTION FACILITIES.—In

19 carrying out section 241(g)(1), the Attorney General or

20 Secretary of Homeland Security shall ensure that an alien

21 arrested under this title shall be held in custody, pending

22 the alien’s examination under this section, in a Federal,

23 contract, State, or local prison, jail, detention center, or

24 other comparable facility. Notwithstanding any other pro-

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1 vision of law, regulation or policy, such facility is adequate

2 for detention, if—

3

‘‘(1) such a facility is the most suitably located

4

Federal, contract, State, or local facility available for

5

such purpose under the circumstances;

6

‘‘(2) an appropriate arrangement for such use

7

of the facility can be made; and

8

‘‘(3) the facility satisfies the standards for the

9

housing, care, and security of persons held in cus-

10

tody by a United States Marshal.

11

‘‘(c) REIMBURSEMENT.—The Secretary of Homeland

12 Security shall reimburse a State, and a political subdivi-

13 sion of a State, for all reasonable expenses, as determined

14 by the Secretary, incurred by the State, or political sub-

15 division, as a result of the incarceration and transpor-

16 tation of an alien who is inadmissible or deportable as de-

17 scribed in subsections (a) and (b). Compensation provided

18 for costs incurred under such subsections shall be the av-

19 erage cost of incarceration of a prisoner in the relevant

20 State, as determined by the chief executive officer of a

21 State, or of a political subdivision of a State, plus the cost

22 of transporting the alien from the point of apprehension

23 to the place of detention, and to the custody transfer point

24 if the place of detention and place of custody are different.

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15

1

‘‘(d) SECURE FACILITIES.—The Secretary of Home-

2 land Security shall ensure that aliens incarcerated pursu-

3 ant to this title are held in facilities that provide an appro-

4 priate level of security.

5

‘‘(e) TRANSFER.—

6

‘‘(1) IN GENERAL.—In carrying out this sec-

7

tion, the Secretary of Homeland Security shall es-

8

tablish a regular circuit and schedule for the prompt

9

transfer of apprehended aliens from the custody of

10

States, and political subdivisions of a State, to Fed-

11

eral custody.

12

‘‘(2) CONTRACTS.—The Secretary may enter

13

into contracts, including appropriate private con-

14

tracts, to implement this subsection.’’.

15

(2) CLERICAL AMENDMENT.—The table of con-

16

tents of such Act is amended by inserting after the

17

item relating to section 240C the following new item:

‘‘Sec. 240D. Custody of inadmissible and deportable aliens present in the United States.’’.

18

(b) GAO AUDIT.—Not later than 3 years after the

19 date of the enactment of this Act, the Comptroller General

20 of the United States shall conduct an audit of compensa-

21 tion to States, and to political subdivisions of a State, for

22 the incarceration of inadmissible or deportable aliens

23 under section 240D(a) of the Immigration and Nationality

24 Act (as added by subsection (a)(1)).

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16

1

(c) EFFECTIVE DATE.—Section 240D of the Immi-

2 gration and Nationality Act, as added by subsection (a),

3 shall take effect on the date of the enactment of this Act,

4 except that subsection (e) of such section shall take effect

5 on the date that is 120 day after the date of the enactment

6 of this Act.

7 SEC. 109. TRAINING OF STATE AND LOCAL LAW ENFORCE-

8

MENT PERSONNEL RELATING TO THE EN-

9

FORCEMENT OF IMMIGRATION LAWS.

10

(a) ESTABLISHMENT OF TRAINING MANUAL AND

11 POCKET GUIDE.—Not later than 180 days after the date

12 of the enactment of this Act, the Secretary shall estab-

13 lish—

14

(1) a training manual for law enforcement per-

15

sonnel of a State, or of a political subdivision of a

16

State, to train such personnel in the investigation,

17

identification, apprehension, arrest, detention, and

18

transfer to Federal custody of inadmissible and de-

19

portable aliens in the United States (including the

20

transportation of such aliens across State lines to

21

detention centers and the identification of fraudulent

22

documents); and

23

(2) an immigration enforcement pocket guide

24

for law enforcement personnel of a State, or of a po-

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17

1

litical subdivision of a State, to provide a quick ref-

2

erence for such personnel in the course of duty.

3

(b) AVAILABILITY.—The training manual and pocket

4 guide established in accordance with subsection (a) shall

5 be made available to all State and local law enforcement

6 personnel.

7

(c) APPLICABILITY.—Nothing in this section shall be

8 construed to require State or local law enforcement per-

9 sonnel to carry the training manual or pocket guide with

10 them while on duty.

11

(d) COSTS.—The Secretary shall be responsible for

12 any costs incurred in establishing the training manual and

13 pocket guide.

14

(e) TRAINING FLEXIBILITY.—

15

(1) IN GENERAL.—The Secretary shall make

16

training of State and local law enforcement officers

17

available through as many means as possible, includ-

18

ing through residential training at the Center for

19

Domestic Preparedness, onsite training held at State

20

or local police agencies or facilities, online training

21

courses by computer, teleconferencing, and video-

22

tape, or the digital video display (DVD) of a train-

23

ing course or courses. E-learning through a secure,

24

encrypted distributed learning system that has all its

25

servers based in the United States, is scalable, sur-

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18

1

vivable, and can have a portal in place not later than

2

30 days after the date of the enactment of this Act,

3

shall be made available by the Federal Law Enforce-

4

ment Training Center Distributed Learning Pro-

5

gram for State and local law enforcement personnel.

6

(2) FEDERAL PERSONNEL TRAINING.—The

7

training of State and local law enforcement per-

8

sonnel under this section shall not displace the train-

9

ing of Federal personnel.

10

(3) CLARIFICATION.—Nothing in this title or

11

any other provision of law shall be construed as

12

making any immigration-related training a require-

13

ment for, or prerequisite to, any State or local law

14

enforcement officer to assist in the enforcement of

15

Federal immigration laws.

16

(4) PRIORITY.—In carrying out this subsection,

17

priority funding shall be given for existing web-based

18

immigration enforcement training systems.

19 SEC. 110. IMMUNITY.

20

Notwithstanding any other provision of law, a law en-

21 forcement officer of a State or local law enforcement agen-

22 cy who is acting within the scope of the officer’s official

23 duties shall be immune, to the same extent as a Federal

24 law enforcement officer, from personal liability arising out

25 of the performance of any duty described in this title, in-

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19

1 cluding the authorities to investigate, identify, apprehend,

2 arrest, detain, or transfer to Federal custody, an alien for

3 the purposes of enforcing the immigration laws of the

4 United States (as defined in section 101(a)(17) of the Im-

5 migration and Nationality Act (8 U.S.C. 1101(a)(17))) or

6 the immigration laws of a State or a political subdivision

7 of a State.

8 SEC. 111. CRIMINAL ALIEN IDENTIFICATION PROGRAM.

9

(a) CONTINUATION AND EXPANSION.—

10

(1) IN GENERAL.—The Secretary shall continue

11

to operate and implement a program that—

12

(A) identifies removable criminal aliens in

13

Federal and State correctional facilities;

14

(B) ensures such aliens are not released

15

into the community; and

16

(C) removes such aliens from the United

17

States after the completion of their sentences.

18

(2) EXPANSION.—The program shall be ex-

19

tended to all States. Any State that receives Federal

20

funds for the incarceration of criminal aliens (pursu-

21

ant to the State Criminal Alien Assistance Program

22

authorized under section 241(i) of the Immigration

23

and Nationality Act (8 U.S.C. 1231(i)) or other

24

similar program) shall—

25

(A) cooperate with officials of the program;

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1

(B) expeditiously and systematically iden-

2

tify criminal aliens in its prison and jail popu-

3

lations; and

4

(C) promptly convey such information to

5

officials of such program as a condition of re-

6

ceiving such funds.

7

(b) AUTHORIZATION FOR DETENTION AFTER COM-

8 PLETION OF STATE OR LOCAL PRISON SENTENCE.—Law

9 enforcement officers of a State, or of a political subdivision

10 of a State, are authorized to—

11

(1) hold a criminal alien for a period of up to

12

48 hours (excluding Saturdays, Sundays, and holi-

13

days) after the alien has completed the alien’s sen-

14

tence under State or local law in order to effectuate

15

the transfer of the alien to Federal custody when the

16

alien is inadmissible or deportable; or

17

(2) issue a detainer that would allow aliens who

18

have served a prison sentence under State or local

19

law to be detained by the State or local prison or jail

20

until the Secretary can take the alien into custody.

21

(c) TECHNOLOGY USAGE.—Technology, such as video

22 conferencing, shall be used to the maximum extent prac-

23 ticable in order to make the program available in remote

24 locations. Mobile access to Federal databases of aliens and

25 live scan technology shall be used to the maximum extent

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21

1 practicable in order to make these resources available to

2 State and local law enforcement agencies in remote loca-

3 tions.

4

(d) EFFECTIVE DATE.—This section shall take effect

5 of the date of the enactment of this Act, except that sub-

6 section (a)(2) shall take effect on the date that is 180 days

7 after such date.

8 SEC. 112. CLARIFICATION OF CONGRESSIONAL INTENT.

9

Section 287(g) of the Immigration and Nationality

10 Act (8 U.S.C. 1357(g)) is amended—

11

(1) in paragraph (1) by striking ‘‘may enter’’

12

and all that follows through the period at the end

13

and inserting the following: ‘‘shall enter into a writ-

14

ten agreement with a State, or any political subdivi-

15

sion of a State, upon request of the State or political

16

subdivision, pursuant to which an officer or em-

17

ployee of the State or subdivision, who is determined

18

by the Secretary to be qualified to perform a func-

19

tion of an immigration officer in relation to the in-

20

vestigation, apprehension, or detention of aliens in

21

the United States (including the transportation of

22

such aliens across State lines to detention centers),

23

may carry out such function at the expense of the

24

State or political subdivision and to extent consistent

25

with State and local law. No request from a bona

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1

fide State or political subdivision or bona fide law

2

enforcement agency shall be denied absent a compel-

3

ling reason. No limit on the number of agreements

4

under this subsection may be imposed. The Sec-

5

retary shall process requests for such agreements

6

with all due haste, and in no case shall take not

7

more than 90 days from the date the request is

8

made until the agreement is consummated.’’;

9

(2) by redesignating paragraph (2) as para-

10

graph (5) and paragraphs (3) through (10) as para-

11

graphs (7) through (14), respectively;

12

(3) by inserting after paragraph (1) the fol-

13

lowing:

14

‘‘(2) An agreement under this subsection shall accom-

15 modate a requesting State or political subdivision with re-

16 spect to the enforcement model or combination of models,

17 and shall accommodate a patrol model, task force model,

18 jail model, any combination thereof, or any other reason-

19 able model the State or political subdivision believes is best

20 suited to the immigration enforcement needs of its juris-

21 diction.

22

‘‘(3) No Federal program or technology directed

23 broadly at identifying inadmissible or deportable aliens

24 shall substitute for such agreements, including those es-

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23 1 tablishing a jail model, and shall operate in addition to

2 any agreement under this subsection.

3

‘‘(4)(A) No agreement under this subsection shall be

4 terminated absent a compelling reason.

5

‘‘(B)(i) The Secretary shall provide a State or polit-

6 ical subdivision written notice of intent to terminate at

7 least 180 days prior to date of intended termination, and

8 the notice shall fully explain the grounds for termination,

9 along with providing evidence substantiating the Sec-

10 retary’s allegations.

11

‘‘(ii) The State or political subdivision shall have the

12 right to a hearing before an administrative law judge and,

13 if the ruling is against the State or political subdivision,

14 to appeal the ruling to the Federal Circuit Court of Ap-

15 peals and, if the ruling is against the State or political

16 subdivision, to the Supreme Court.

17

‘‘(C) The agreement shall remain in full effect during

18 the course of any and all legal proceedings.’’; and

19

(4) by inserting after paragraph (5) (as redesig-

20

nated) the following:

21

‘‘(6) The Secretary of Homeland Security shall make

22 training of State and local law enforcement officers avail-

23 able through as many means as possible, including

24 through residential training at the Center for Domestic

25 Preparedness and the Federal Law Enforcement Training

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1 Center, onsite training held at State or local police agen-

2 cies or facilities, online training courses by computer, tele-

3 conferencing, and videotape, or the digital video display

4 (DVD) of a training course or courses. Distance learning

5 through a secure, encrypted distributed learning system

6 that has all its servers based in the United States, is scal-

7 able, survivable, and can have a portal in place not later

8 than 30 days after the date of the enactment of this Act,

9 shall be made available by the COPS Office of the Depart-

10 ment of Justice and the Federal Law Enforcement Train-

11 ing Center Distributed Learning Program for State and

12 local law enforcement personnel. Preference shall be given

13 to private sector-based web-based immigration enforce-

14 ment training programs for which the Federal Govern-

15 ment has already provided support to develop.’’.

16 SEC. 113. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM

17

(SCAAP).

18

Section 241(i) of the Immigration and Nationality

19 Act (8 U.S.C. 1231(i)) is amended—

20

(1) by striking ‘‘Attorney General’’ the first

21

place such term appears and inserting ‘‘Secretary of

22

Homeland Security’’;

23

(2) by striking ‘‘Attorney General’’ each place

24

such term appears thereafter and inserting ‘‘Sec-

25

retary’’; and

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25

1

(3) in paragraph (3)(A), by inserting ‘‘charged

2

with or’’ before ‘‘convicted’’.

3 SEC. 114. STATE VIOLATIONS OF ENFORCEMENT OF IMMI-

4

GRATION LAWS.

5

(a) IN GENERAL.—Section 642 of the Illegal Immi-

6 gration Reform and Immigrant Responsibility Act of 1996

7 (8 U.S.C. 1373) is amended—

8

(1) by striking ‘‘Immigration and Naturaliza-

9

tion Service’’ each place it appears and inserting

10

‘‘Department of Homeland Security’’;

11

(2) in subsection (a), by striking ‘‘may’’ and in-

12

serting ‘‘shall’’;

13

(3) in subsection (b)—

14

(A) by striking ‘‘no person or agency may’’

15

and inserting ‘‘a person or agency shall not’’;

16

(B) by striking ‘‘doing any of the following

17

with respect to information’’ and inserting ‘‘un-

18

dertaking any of the following law enforcement

19

activities’’; and

20

(C) by striking paragraphs (1) through (3)

21

and inserting the following:

22

‘‘(1) Notifying the Federal Government regard-

23

ing the presence of inadmissible and deportable

24

aliens who are encountered by law enforcement per-

25

sonnel of a State or political subdivision of a State.

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1

‘‘(2) Complying with requests for information

2

from Federal law enforcement.

3

‘‘(3) Issuing policies in the form of a resolu-

4

tions, ordinances, administrative actions, general or

5

special orders, or departmental policies that violate

6

Federal law or restrict a State or political subdivi-

7

sion of a State from complying with Federal law or

8

coordinating with Federal law enforcement.’’; and

9

(4) by adding at the end the following:

10

‘‘(d) COMPLIANCE.—

11

‘‘(1) IN GENERAL.—A State, or a political sub-

12

division of a State, that has in effect a statute, pol-

13

icy, or practice that prohibits law enforcement offi-

14

cers of the State, or of a political subdivision of the

15

State, from assisting or cooperating with Federal

16

immigration law enforcement in the course of car-

17

rying out the officers’ routine law enforcement du-

18

ties shall not be eligible to receive—

19

‘‘(A) any of the funds that would otherwise

20

be allocated to the State or political subdivision

21

under section 241(i) of the Immigration and

22

Nationality Act (8 U.S.C. 1231(i)) or the ‘Cops

23

on the Beat’ program under part Q of title I of

24

the Omnibus Crime Control and Safe Streets

25

Act of 1968 (42 U.S.C. 3796dd et seq.); or

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27

1

‘‘(B) any other law enforcement or Depart-

2

ment of Homeland Security grant.

3

‘‘(2) ANNUAL DETERMINATION.—The Secretary

4

shall determine annually which State or political

5

subdivision of a State are not in compliance with

6

this section and shall report such determinations to

7

Congress on March 1 of each year.

8

‘‘(3) REPORTS.—The Attorney General shall

9

issue a report concerning the compliance of any par-

10

ticular State or political subdivision at the request of

11

the House or Senate Judiciary Committee. Any ju-

12

risdiction that is found to be out of compliance shall

13

be ineligible to receive Federal financial assistance

14

as provided in paragraph (1) for a minimum period

15

of 1 year, and shall only become eligible again after

16

the Attorney General certifies that the jurisdiction is

17

in compliance.

18

‘‘(4) REALLOCATION.—Any funds that are not

19

allocated to a State or to a political subdivision of

20

a State, due to the failure of the State, or of the po-

21

litical subdivision of the State, to comply with sub-

22

section (c) shall be reallocated to States, or to polit-

23

ical subdivisions of States, that comply with such

24

subsection.

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1

‘‘(e) CONSTRUCTION.—Nothing in this section shall

2 require law enforcement officials from States, or from po-

3 litical subdivisions of States, to report or arrest victims

4 or witnesses of a criminal offense.’’.

5

(b) EFFECTIVE DATE.—The amendments made by

6 this section shall take effect on the date of the enactment

7 of this Act, except that subsection (d) of section 642 of

8 the Illegal Immigration Reform and Immigrant Responsi-

9 bility Act of 1996 (8 U.S.C. 1373), as added by this sec-

10 tion, shall take effect beginning one year after the date

11 of the enactment of this Act.

12 SEC. 115. CLARIFYING THE AUTHORITY OF ICE DETAINERS.

13

(a) IN GENERAL.—Except as otherwise provided by

14 Federal law or rule of procedure, the Secretary of Home-

15 land Security shall execute all lawful writs, process, and

16 orders issued under the authority of the United States,

17 and shall command all necessary assistance to execute the

18 Secretary’s duties.

19

(b) STATE AND LOCAL COOPERATION WITH DHS

20 DETAINERS.—A State, or a political subdivision of a

21 State, that has in effect a statute or policy or practice

22 providing that it not comply with any Department of

23 Homeland Security detainer ordering that it temporarily

24 hold an alien in their custody so that the alien may be

25 taken into Federal custody, or transport the alien for

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1 transfer to Federal custody, shall not be eligible to re-

2 ceive—

3

(1) any of the funds that would otherwise be al-

4

located to the State or political subdivision under

5

section 241(i) of the Immigration and Nationality

6

Act (8 U.S.C. 1231(i)) or the ‘‘Cops on the Beat’’

7

program under part Q of title I of the Omnibus

8

Crime Control and Safe Streets Act of 1968 (42

9

U.S.C. 3796dd et seq.); or

10

(2) any other law enforcement or Department

11

of Homeland Security grant.

12

(c) IMMUNITY.—A State or a political subdivision of

13 a State acting in compliance with a Department of Home-

14 land Security detainer who temporarily holds aliens in its

15 custody so that they may be taken into Federal custody,

16 or transports the aliens for transfer to Federal custody,

17 shall be considered to be acting under color of Federal

18 authority for purposes of determining its liability, and im-

19 munity from suit, in civil actions brought by the aliens

20 under Federal or State law.

21

(d) PROBABLE CAUSE.—It is the sense of Congress

22 that the Department of Homeland Security has probable

23 cause to believe that an alien is inadmissible or deportable

24 when it issues a detainer regarding such alien under the

25 standards in place on the date of introduction of this Act.

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30
1 TITLE II—NATIONAL SECURITY

2 SEC. 201. REMOVAL OF, AND DENIAL OF BENEFITS TO, TER-

3

RORIST ALIENS.

4

(a) ASYLUM.—Section 208(b)(2)(A) of the Immigra-

5 tion and Nationality Act (8 U.S.C. 1158(b)(2)(A)) is

6 amended—

7

(1) by inserting ‘‘or the Secretary of Homeland

8

Security’’ after ‘‘if the Attorney General’’; and

9

(2) by amending clause (v) to read as follows:

10

‘‘(v) the alien is described in subpara-

11

graph (B)(i) or (F) of section 212(a)(3),

12

unless, in the case of an alien described in

13

subparagraph (IV), (V), or (IX) of section

14

212(a)(3)(B)(i), the Secretary of Home-

15

land Security or the Attorney General de-

16

termines, in the discretion of the Secretary

17

or the Attorney General, that there are not

18

reasonable grounds for regarding the alien

19

as a danger to the security of the United

20

States; or’’.

21

(b) CANCELLATION OF REMOVAL.—Section

22 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amend-

23 ed—

24

(1) by striking ‘‘inadmissible under’’ and insert-

25

ing ‘‘described in’’; and

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31

1

(2) by striking ‘‘deportable under’’ and insert-

2

ing ‘‘described in’’.

3

(c)

VOLUNTARY

DEPARTURE.—Section

4 240B(b)(1)(C) of such Act (8 U.S.C. 1229c(b)(1)(C)) is

5 amended by striking ‘‘deportable under section

6 237(a)(2)(A)(iii) or section 237(a)(4);’’ and inserting ‘‘de-

7 scribed in paragraph (2)(A)(iii) or (4) of section 237(a);’’.

8

(d) RESTRICTION ON REMOVAL.—Section

9 241(b)(3)(B) of such Act (8 U.S.C. 1231(b)(3)(B)) is

10 amended—

11

(1) in the matter preceding clause (i), by insert-

12

ing ‘‘or the Secretary of Homeland Security’’ after

13

‘‘Attorney General’’ each place it appears;

14

(2) in clause (iii), by striking ‘‘or’’ at the end;

15

(3) in clause (iv), by striking the period at the

16

end and inserting a semicolon;

17

(4) by striking the flush matter that follows

18

after clause (iv); and

19

(5) by inserting after clause (iv) the following:

20

‘‘(v) the alien is described in subpara-

21

graph (B)(i) or (F) of section 212(a)(3),

22

unless, in the case of an alien described in

23

subparagraph (IV), (V), or (IX) of section

24

212(a)(3)(B)(i), the Secretary of Home-

25

land Security or the Attorney General de-

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32

1

termines, in discretion of the Secretary or

2

the Attorney General, that there are not

3

reasonable grounds for regarding the alien

4

as a danger to the security of the United

5

States; or’’.

6

(e) RECORD OF ADMISSION.—

7

(1) IN GENERAL.—Section 249 of such Act (8

8

U.S.C. 1259) is amended to read as follows:

9 ‘‘RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN

10

THE CASE OF CERTAIN ALIENS WHO ENTERED THE

11

UNITED STATES PRIOR TO JANUARY 1, 1972

12

‘‘SEC. 249. The Secretary of Homeland Security, in

13 the discretion of the Secretary and under such regulations

14 as the Secretary may prescribe, may enter a record of law-

15 ful admission for permanent residence in the case of any

16 alien, if no such record is otherwise available and the

17 alien—

18

‘‘(1) entered the United States before January

19

1, 1972;

20

‘‘(2) has continuously resided in the United

21

States since such entry;

22

‘‘(3) has been a person of good moral character

23

since such entry;

24

‘‘(4) is not ineligible for citizenship;

25

‘‘(5) is not described in paragraph (1)(A)(iv),

26

(2), (3), (6)(C), (6)(E), or (8) of section 212(a); and

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33

1

‘‘(6) did not, at any time, without reasonable

2

cause fail or refuse to attend or remain in attend-

3

ance at a proceeding to determine the alien’s inad-

4

missibility or deportability.

5 Such recordation shall be effective as of the date of ap-

6 proval of the application or as of the date of entry if such

7 entry occurred prior to July 1, 1924.’’.

8

(2) CLERICAL AMENDMENT.—The table of con-

9

tents for such Act is amended by amending the item

10

relating to section 249 to read as follows:

‘‘Sec. 249. Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972.’’.

11

(f) EFFECTIVE DATE.—The amendments made by

12 this section shall take effect on the date of enactment of

13 this Act and sections 208(b)(2)(A), 212(a), 240A, 240B,

14 241(b)(3), and 249 of the Immigration and Nationality

15 Act, as so amended, shall apply to—

16

(1) all aliens in removal, deportation, or exclu-

17

sion proceedings;

18

(2) all applications pending on, or filed after,

19

the date of the enactment of this Act; and

20

(3) with respect to aliens and applications de-

21

scribed in paragraph (1) or (2) of this subsection,

22

acts and conditions constituting a ground for exclu-

23

sion, deportation, or removal occurring or existing

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34

1

before, on, or after the date of the enactment of this

2

Act.

3 SEC. 202. TERRORIST BAR TO GOOD MORAL CHARACTER.

4

(a) DEFINITION OF GOOD MORAL CHARACTER.—

5 Section 101(f) of the Immigration and Nationality Act (8

6 U.S.C. 1101(f)) is amended—

7

(1) by inserting after paragraph (1) the fol-

8

lowing:

9

‘‘(2) one who the Secretary of Homeland Secu-

10

rity or Attorney General determines to have been at

11

any time an alien described in section 212(a)(3) or

12

237(a)(4), which determination may be based upon

13

any relevant information or evidence, including clas-

14

sified, sensitive, or national security information;’’;

15

(2) in paragraph (8), by inserting ‘‘, regardless

16

whether the crime was classified as an aggravated

17

felony at the time of conviction, except that the Sec-

18

retary of Homeland Security or Attorney General

19

may, in the unreviewable discretion of the Secretary

20

or Attorney General, determine that this paragraph

21

shall not apply in the case of a single aggravated fel-

22

ony conviction (other than murder, manslaughter,

23

homicide, rape, or any sex offense when the victim

24

of such sex offense was a minor) for which comple-

25

tion of the term of imprisonment or the sentence

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35

1

(whichever is later) occurred 10 or more years prior

2

to the date of application’’ after ‘‘(as defined in sub-

3

section (a)(43))’’; and

4

(3) in the matter following paragraph (9), by

5

striking the first sentence and inserting the fol-

6

lowing: ‘‘The fact that any person is not within any

7

of the foregoing classes shall not preclude a discre-

8

tionary finding for other reasons that such a person

9

is or was not of good moral character. The Secretary

10

or the Attorney General shall not be limited to the

11

applicant’s conduct during the period for which good

12

moral character is required, but may take into con-

13

sideration as a basis for determination the appli-

14

cant’s conduct and acts at any time.’’.

15

(b) AGGRAVATED FELONS.—Section 509(b) of the

16 Immigration Act of 1990 (8 U.S.C. 1101 note) is amended

17 to read as follows:

18

‘‘(b) EFFECTIVE DATE.—The amendment made by

19 subsection (a) shall take effect on November 29, 1990,

20 and shall apply to convictions occurring before, on or after

21 such date.’’.

22

(c) TECHNICAL CORRECTION TO THE INTELLIGENCE

23 REFORM ACT.—Section 5504(2) of the Intelligence Re-

24 form and Terrorism Prevention Act of 2004 (Public Law

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36

1 108–458) is amended by striking ‘‘adding at the end’’ and

2 inserting ‘‘inserting after paragraph (8)’’.

3

(d) EFFECTIVE DATE.—The amendments made by

4 subsections (a) and (b) shall take effect on the date of

5 enactment of this Act, shall apply to any act that occurred

6 before, on, or after such date and shall apply to any appli-

7 cation for naturalization or any other benefit or relief, or

8 any other case or matter under the immigration laws

9 pending on or filed after such date. The amendments

10 made by subsection (c) shall take effect as if enacted in

11 the Intelligence Reform and Terrorism Prevention Act of

12 2004 (Public Law 108–458).

13 SEC. 203. TERRORIST BAR TO NATURALIZATION.

14

(a) NATURALIZATION OF PERSONS ENDANGERING

15 THE NATIONAL SECURITY.—Section 316 of the Immigra-

16 tion and Nationality Act (8 U.S.C. 1426) is amended by

17 adding at the end the following:

18

‘‘(g) PERSONS ENDANGERING THE NATIONAL SECU-

19 RITY.—No person shall be naturalized who the Secretary

20 of Homeland Security determines to have been at any time

21 an alien described in section 212(a)(3) or 237(a)(4). Such

22 determination may be based upon any relevant informa-

23 tion or evidence, including classified, sensitive, or national

24 security information.’’.

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37

1

(b) CONCURRENT NATURALIZATION AND REMOVAL

2 PROCEEDINGS.—Section 318 of the Immigration and Na-

3 tionality Act (8 U.S.C. 1429) is amended by striking

4 ‘‘other Act;’’ and inserting ‘‘other Act; and no application

5 for naturalization shall be considered by the Secretary of

6 Homeland Security or any court if there is pending

7 against the applicant any removal proceeding or other pro-

8 ceeding to determine the applicant’s inadmissibility or de-

9 portability, or to determine whether the applicant’s lawful

10 permanent resident status should be rescinded, regardless

11 of when such proceeding was commenced: Provided, That

12 the findings of the Attorney General in terminating re-

13 moval proceedings or in canceling the removal of an alien

14 pursuant to the provisions of this Act, shall not be deemed

15 binding in any way upon the Secretary of Homeland Secu-

16 rity with respect to the question of whether such person

17 has established his eligibility for naturalization as required

18 by this title;’’.

19

(c) PENDING DENATURALIZATION OR REMOVAL

20 PROCEEDINGS.—Section 204(b) of the Immigration and

21 Nationality Act (8 U.S.C. 1154(b)) is amended by adding

22 at the end the following: ‘‘No petition shall be approved

23 pursuant to this section if there is any administrative or

24 judicial proceeding (whether civil or criminal) pending

25 against the petitioner that could (whether directly or indi-

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38

1 rectly) result in the petitioner’s denaturalization or the

2 loss of the petitioner’s lawful permanent resident status.’’.

3

(d) CONDITIONAL PERMANENT RESIDENTS.—Sec-

4 tions 216(e) and section 216A(e) of the Immigration and

5 Nationality Act (8 U.S.C. 1186a(e) and 1186b(e)) are

6 each amended by striking the period at the end and insert-

7 ing ‘‘, if the alien has had the conditional basis removed

8 pursuant to this section.’’.

9

(e) DISTRICT COURT JURISDICTION.—Subsection

10 336(b) of the Immigration and Nationality Act (8 U.S.C.

11 1447(b)) is amended to read as follows:

12

‘‘(b) If there is a failure to render a final administra-

13 tive decision under section 335 before the end of the 180-

14 day period after the date on which the Secretary of Home-

15 land Security completes all examinations and interviews

16 conducted under such section, as such terms are defined

17 by the Secretary of Homeland Security pursuant to regu-

18 lations, the applicant may apply to the district court for

19 the district in which the applicant resides for a hearing

20 on the matter. Such court shall only have jurisdiction to

21 review the basis for delay and remand the matter to the

22 Secretary of Homeland Security for the Secretary’s deter-

23 mination on the application.’’.

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39

1

(f) CONFORMING AMENDMENT.—Section 310(c) of

2 the Immigration and Nationality Act (8 U.S.C. 1421(c))

3 is amended—

4

(1) by inserting ‘‘, not later than the date that

5

is 120 days after the Secretary of Homeland Secu-

6

rity’s final determination,’’ after ‘‘seek’’; and

7

(2) by striking the second sentence and insert-

8

ing the following: ‘‘The burden shall be upon the pe-

9

titioner to show that the Secretary’s denial of the

10

application was not supported by facially legitimate

11

and bona fide reasons. Except in a proceeding under

12

section 340, notwithstanding any other provision of

13

law (statutory or nonstatutory), including section

14

2241 of title 28, United States Code, or any other

15

habeas corpus provision, and sections 1361 and

16

1651 of such title, no court shall have jurisdiction

17

to determine, or to review a determination of the

18

Secretary made at any time regarding, whether, for

19

purposes of an application for naturalization, an

20

alien is a person of good moral character, whether

21

the alien understands and is attached to the prin-

22

ciples of the Constitution of the United States, or

23

whether an alien is well disposed to the good order

24

and happiness of the United States.’’.

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1

(g) EFFECTIVE DATE.—The amendments made by

2 this section shall take effect on the date of enactment of

3 this Act, shall apply to any act that occurred before, on,

4 or after such date, and shall apply to any application for

5 naturalization or any other case or matter under the immi-

6 gration laws pending on, or filed after, such date.

7 SEC. 204. DENATURALIZATION FOR TERRORISTS.

8

(a) IN GENERAL.—Section 340 of the Immigration

9 and Nationality Act is amended—

10

(1) by redesignating subsections (f) through (h)

11

as subsections (g) through (i), respectively; and

12

(2) by inserting after subsection (e) the fol-

13

lowing:

14

‘‘(f)(1) If a person who has been naturalized partici-

15 pates in any act described in paragraph (2), the Attorney

16 General is authorized to find that, as of the date of such

17 naturalization, such person was not attached to the prin-

18 ciples of the Constitution of the United States and was

19 not well disposed to the good order and happiness of the

20 United States at the time of naturalization, and upon such

21 finding shall set aside the order admitting such person to

22 citizenship and cancel the certificate of naturalization as

23 having been obtained by concealment of a material fact

24 or by willful misrepresentation, and such revocation and

25 setting aside of the order admitting such person to citizen-

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41

1 ship and such canceling of certificate of naturalization

2 shall be effective as of the original date of the order and

3 certificate, respectively.

4

‘‘(2) The acts described in this paragraph are the fol-

5 lowing:

6

‘‘(A) Any activity a purpose of which is the op-

7

position to, or the control or overthrow of, the Gov-

8

ernment of the United States by force, violence, or

9

other unlawful means.

10

‘‘(B) Engaging in a terrorist activity (as de-

11

fined in clauses (iii) and (iv) of section

12

212(a)(3)(B)).

13

‘‘(C) Incitement of terrorist activity under cir-

14

cumstances indicating an intention to cause death or

15

serious bodily harm.

16

‘‘(D) Receiving military-type training (as de-

17

fined in section 2339D(c)(1) of title 18, United

18

States Code) from or on behalf of any organization

19

that, at the time the training was received, was a

20

terrorist organization (as defined in section

21

212(a)(3)(B)(vi)).’’.

22

(b) EFFECTIVE DATE.—The amendments made by

23 subsection (a) shall take effect on the date of the enact-

24 ment of this Act and shall apply to acts that occur on

25 or after such date.

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42 1 SEC. 205. USE OF 1986 IRCA LEGALIZATION INFORMATION

2

FOR NATIONAL SECURITY PURPOSES.

3

(a) SPECIAL AGRICULTURAL WORKERS.—Section

4 210(b)(6) of the Immigration and Nationality Act (8

5 U.S.C. 1160(b)(6)) is amended—

6

(1) by striking ‘‘Attorney General’’ each place

7

such term appears and inserting ‘‘Secretary of

8

Homeland Security’’;

9

(2) in subparagraph (A), by striking ‘‘Depart-

10

ment of Justice,’’ and inserting ‘‘Department of

11

Homeland Security,’’;

12

(3) by redesignating subparagraphs (C) and

13

(D) as subparagraphs (D) and (E), respectively;

14

(4) by inserting after subparagraph (B) the fol-

15

lowing:

16

‘‘(C) AUTHORIZED DISCLOSURES.—

17

‘‘(i) CENSUS PURPOSE.—The Sec-

18

retary of Homeland Security may provide,

19

in his discretion, for the furnishing of in-

20

formation furnished under this section in

21

the same manner and circumstances as

22

census information may be disclosed under

23

section 8 of title 13, United States Code.

24

‘‘(ii) NATIONAL SECURITY PUR-

25

POSE.—The Secretary of Homeland Secu-

26

rity may provide, in his discretion, for the

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43

1

furnishing, use, publication, or release of

2

information furnished under this section in

3

any investigation, case, or matter, or for

4

any purpose, relating to terrorism, national

5

intelligence or the national security.’’; and

6

(5) in subparagraph (D), as redesignated, by

7

striking ‘‘Service’’ and inserting ‘‘Department of

8

Homeland Security’’.

9

(b) ADJUSTMENT OF STATUS UNDER THE IMMIGRA-

10 TION REFORM AND CONTROL ACT OF 1986.—Section

11 245A(c)(5) of the Immigration and Nationality Act (8

12 U.S.C. 1255a(c)(5)), is amended—

13

(1) by striking ‘‘Attorney General’’ each place

14

such term appears and inserting ‘‘Secretary of

15

Homeland Security’’;

16

(2) in subparagraph (A), by striking ‘‘Depart-

17

ment of Justice,’’ and inserting ‘‘Department of

18

Homeland Security,’’;

19

(3) by amending subparagraph (C) to read as

20

follows:

21

‘‘(C) AUTHORIZED DISCLOSURES.—

22

‘‘(i) CENSUS PURPOSE.—The Sec-

23

retary of Homeland Security may provide,

24

in his discretion, for the furnishing of in-

25

formation furnished under this section in

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44

1

the same manner and circumstances as

2

census information may be disclosed under

3

section 8 of title 13, United States Code.

4

‘‘(ii) NATIONAL SECURITY PUR-

5

POSE.—The Secretary of Homeland Secu-

6

rity may provide, in his discretion, for the

7

furnishing, use, publication, or release of

8

information furnished under this section in

9

any investigation, case, or matter, or for

10

any purpose, relating to terrorism, national

11

intelligence or the national security.’’; and

12

(4) in subparagraph (D)(i), striking ‘‘Service’’

13

and inserting ‘‘Department of Homeland Security’’.

14 SEC. 206. BACKGROUND AND SECURITY CHECKS.

15

(a) REQUIREMENT TO COMPLETE BACKGROUND AND

16 SECURITY CHECKS.—Section 103 of the Immigration and

17 Nationality Act (8 U.S.C. 1103) is amended by adding

18 at the end the following:

19

‘‘(h) Notwithstanding any other provision of law

20 (statutory or nonstatutory), including but not limited to

21 section 309 of Public Law 107–173, sections 1361 and

22 1651 of title 28, United States Code, and section 706(1)

23 of title 5, United States Code, neither the Secretary of

24 Homeland Security, the Attorney General, nor any court

25 may—

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45

1

‘‘(1) grant, or order the grant of or adjudica-

2

tion of an application for adjustment of status to

3

that of an alien lawfully admitted for permanent res-

4

idence;

5

‘‘(2) grant, or order the grant of or adjudica-

6

tion of an application for United States citizenship

7

or any other status, relief, protection from removal,

8

employment authorization, or other benefit under

9

the immigration laws;

10

‘‘(3) grant, or order the grant of or adjudica-

11

tion of, any immigrant or nonimmigrant petition; or

12

‘‘(4) issue or order the issuance of any docu-

13

mentation evidencing or related to any such grant,

14

until such background and security checks as the

15

Secretary may in his discretion require have been

16

completed or updated to the satisfaction of the Sec-

17

retary.

18

‘‘(i) Notwithstanding any other provision of law (stat-

19 utory or nonstatutory), including but not limited to section

20 309 of Public Law 107–173, sections 1361 and 1651 of

21 title 28, United States Code, and section 706(1) of title

22 5, United States Code, neither the Secretary of Homeland

23 Security nor the Attorney General may be required to—

24

‘‘(1) grant, or order the grant of or adjudica-

25

tion of an application for adjustment of status to

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46

1

that of an alien lawfully admitted for permanent res-

2

idence,

3

‘‘(2) grant, or order the grant of or adjudica-

4

tion of an application for United States citizenship

5

or any other status, relief, protection from removal,

6

employment authorization, or other benefit under

7

the immigration laws,

8

‘‘(3) grant, or order the grant of or adjudica-

9

tion of, any immigrant or nonimmigrant petition, or

10

‘‘(4) issue or order the issuance of any docu-

11

mentation evidencing or related to any such grant,

12

until any suspected or alleged materially false infor-

13

mation, material misrepresentation or omission, con-

14

cealment of a material fact, fraud or forgery, coun-

15

terfeiting, or alteration, or falsification of a docu-

16

ment, as determined by the Secretary, relating to

17

the adjudication of an application or petition for any

18

status (including the granting of adjustment of sta-

19

tus), relief, protection from removal, or other benefit

20

under this subsection has been investigated and re-

21

solved to the Secretary’s satisfaction.

22

‘‘(j) Notwithstanding any other provision of law (stat-

23 utory or nonstatutory), including section 309 of the En-

24 hanced Border Security and Visa Entry Reform Act (8

25 U.S.C. 1738), sections 1361 and 1651 of title 28, United

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47

1 States Code, and section 706(1) of title 5, United States

2 Code, no court shall have jurisdiction to require any of

3 the acts in subsection (h) or (i) to be completed by a cer-

4 tain time or award any relief for failure to complete or

5 delay in completing such acts.’’.

6

(b) CONSTRUCTION.—

7

(1) IN GENERAL.—Chapter 4 of title III of the

8

Immigration and Nationality Act (8 U.S.C. 1501 et

9

seq.) is amended by adding at the end the following:

10

‘‘CONSTRUCTION

11

‘‘SEC. 362. (a) IN GENERAL.—Nothing in this Act

12 or any other law, except as provided in subsection (d),

13 shall be construed to require the Secretary of Homeland

14 Security, the Attorney General, the Secretary of State, the

15 Secretary of Labor, or a consular officer to grant any ap-

16 plication, approve any petition, or grant or continue any

17 relief, protection from removal, employment authorization,

18 or any other status or benefit under the immigration laws

19 by, to, or on behalf of—

20

‘‘(1) any alien deemed by the Secretary to be

21

described in section 212(a)(3) or section 237(a)(4);

22

or

23

‘‘(2) any alien with respect to whom a criminal

24

or other proceeding or investigation is open or pend-

25

ing (including, but not limited to, issuance of an ar-

26

rest warrant, detainer, or indictment), where such

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48

1

proceeding or investigation is deemed by the official

2

described in subsection (a) to be material to the

3

alien’s eligibility for the status or benefit sought.

4

‘‘(b) DENIAL OR WITHHOLDING OF ADJUDICA-

5 TION.—An official described in subsection (a) may, in the

6 discretion of the official, deny (with respect to an alien

7 described in paragraph (1) or (2) of subsection (a)) or

8 withhold adjudication of pending resolution of the inves-

9 tigation or case (with respect to an alien described in sub-

10 section (a)(2) of this section) any application, petition, re-

11 lief, protection from removal, employment authorization,

12 status or benefit.

13

‘‘(c) JURISDICTION.—Notwithstanding any other pro-

14 vision of law (statutory or nonstatutory), including section

15 309 of the Enhanced Border Security and Visa Entry Re-

16 form Act (8 U.S.C. 1738), sections 1361 and 1651 of title

17 28, United States Code, and section 706(1) of title 5,

18 United States Code, no court shall have jurisdiction to re-

19 view a decision to deny or withhold adjudication pursuant

20 to subsection (b) of this section.

21

‘‘(d) WITHHOLDING OF REMOVAL AND TORTURE

22 CONVENTION.—This section does not limit or modify the

23 applicability of section 241(b)(3) or the United Nations

24 Convention Against Torture and Other Cruel, Inhuman or

25 Degrading Treatment or Punishment, subject to any res-

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49 1 ervations, understandings, declarations and provisos con-

2 tained in the United States Senate resolution of ratifica-

3 tion of the Convention, as implemented by section 2242

4 of the Foreign Affairs Reform and Restructuring Act of

5 1998 (Public Law 105–277) with respect to an alien oth-

6 erwise eligible for protection under such provisions.’’.

7

(2) CLERICAL AMENDMENT.—The table of con-

8

tents for such Act is amended by inserting after the

9

item relating to section 361 the following:

‘‘Sec. 362. Construction.’’.

10

(c) EFFECTIVE DATE.—The amendments made by

11 this section shall take effect on the date of the enactment

12 of this Act and shall apply to applications for immigration

13 benefits pending on or after such date.

14 SEC. 207. TECHNICAL AMENDMENTS RELATING TO THE IN-

15

TELLIGENCE REFORM AND TERRORISM PRE-

16

VENTION ACT OF 2004.

17

(a) TRANSIT WITHOUT VISA PROGRAM.—Section

18 7209(d) of the Intelligence Reform and Terrorism Preven-

19 tion Act of 2004 (8 U.S.C. 1185 note) is amended by

20 striking ‘‘the Secretary, in conjunction with the Secretary

21 of Homeland Security,’’ and inserting ‘‘the Secretary of

22 Homeland Security, in consultation with the Secretary of

23 State,’’.

24

(b) TECHNOLOGY ACQUISITION AND DISSEMINATION

25 PLAN.—Section 7201(c)(1) of such Act is amended by in-

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50

1 serting ‘‘and the Department of State’’ after ‘‘used by the

2 Department of Homeland Security’’.

3

TITLE III—REMOVAL OF

4

CRIMINAL ALIENS

5 SEC. 301. DEFINITION OF AGGRAVATED FELONY.

6

(a) DEFINITION OF AGGRAVATED FELONY.—Section

7 101(a)(43) of the Immigration and Nationality Act (8

8 U.S.C. 1101(a)(43)) is amended—

9

(1) by striking ‘‘The term ‘aggravated felony’

10

means—’’ and inserting ‘‘Notwithstanding any other

11

provision of law, the term ‘aggravated felony’ applies

12

to an offense described in this paragraph, whether in

13

violation of Federal or State law, or in violation of

14

the law of a foreign country for which the term of

15

imprisonment was completed within the previous 15

16

years, even if the length of the term of imprisonment

17

for the offense is based on recidivist or other en-

18

hancements and regardless of whether the conviction

19

was entered before, on, or after September 30, 1996,

20

and means—’’;

21

(2) in subparagraph (A), by striking ‘‘murder,

22

rape, or sexual abuse of a minor;’’ and inserting

23

‘‘murder, manslaughter, homicide, rape (whether the

24

victim was conscious or unconscious), or any offense

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51

1

of a sexual nature involving a victim under the age

2

of 18 years;’’;

3

(3) in subparagraph (I), by striking ‘‘or 2252’’

4

and inserting ‘‘2252, or 2252A’’;

5

(4) in subparagraph (F), by striking ‘‘at least

6

one year;’’ and inserting ‘‘is at least one year, except

7

that if the conviction records do not conclusively es-

8

tablish whether a crime constitutes a crime of vio-

9

lence, the Attorney General may consider other evi-

10

dence related to the conviction that clearly estab-

11

lishes that the conduct for which the alien was en-

12

gaged constitutes a crime of violence;’’;

13

(5) in subparagraph (N)—

14

(A) by striking ‘‘paragraph (1)(A) or (2)

15

of’’; and

16

(B) by inserting a semicolon at the end;

17

(6) in subparagraph (O), by striking ‘‘section

18

275(a) or 276 committed by an alien who was pre-

19

viously deported on the basis of a conviction for an

20

offense described in another subparagraph of this

21

paragraph’’ and inserting ‘‘section 275 or 276 for

22

which the term of imprisonment is at least 1 year’’;

23

(7) in subparagraph (U), by striking ‘‘an at-

24

tempt or conspiracy to commit an offense described

25

in this paragraph’’ and inserting ‘‘attempting or

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52

1

conspiring to commit an offense described in this

2

paragraph, or aiding, abetting, counseling, pro-

3

curing, commanding, inducing, or soliciting the com-

4

mission of such an offense’’; and

5

(8) by striking the undesignated matter fol-

6

lowing subparagraph (U).

7

(b) EFFECTIVE DATE; APPLICATION OF AMEND-

8 MENTS.—

9

(1) IN GENERAL.—The amendments made by

10

subsection (a)—

11

(A) shall take effect on the date of the en-

12

actment of this Act; and

13

(B) shall apply to any act or conviction

14

that occurred before, on, or after such date.

15

(2) APPLICATION OF IIRIRA AMENDMENTS.—

16

The amendments to section 101(a)(43) of the Immi-

17

gration and Nationality Act (8 U.S.C. 1101(a)(43))

18

made by section 321 of the Illegal Immigration Re-

19

form and Immigrant Responsibility Act of 1996 (di-

20

vision C of Public Law 104–208; 110 Stat. 3009–

21

627) shall continue to apply, whether the conviction

22

was entered before, on, or after September 30, 1996.

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53 1 SEC. 302. PRECLUDING ADMISSIBILITY OF ALIENS CON-

2

VICTED OF AGGRAVATED FELONIES OR

3

OTHER SERIOUS OFFENSES.

4

(a) INADMISSIBILITY ON CRIMINAL AND RELATED

5 GROUNDS; WAIVERS.—Section 212 of the Immigration

6 and Nationality Act (8 U.S.C. 1182) is amended—

7

(1) in subsection (a)(2)(A)(i)—

8

(A) in subclause (I), by striking ‘‘or’’ at

9

the end;

10

(B) in subclause (II), by adding ‘‘or’’ at

11

the end; and

12

(C) by inserting after subclause (II) the

13

following:

14

‘‘(III) a violation of (or a con-

15

spiracy or attempt to violate) an of-

16

fense described in section 408 of title

17

42, United States Code (relating to

18

social security account numbers or so-

19

cial security cards) or section 1028 of

20

title 18, United States Code (relating

21

to fraud and related activity in con-

22

nection with identification documents,

23

authentication features, and informa-

24

tion),’’;

25

(2) by adding at the end of subsection (a)(2)

26

the following:

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54

1

‘‘(J) PROCUREMENT OF CITIZENSHIP OR

2

NATURALIZATION UNLAWFULLY.—Any alien

3

convicted of, or who admits having committed,

4

or who admits committing acts which constitute

5

the essential elements of, a violation of, or an

6

attempt or a conspiracy to violate, subsection

7

(a) or (b) of section 1425 of title 18, United

8

States Code (relating to the procurement of

9

citizenship or naturalization unlawfully) is inad-

10

missible.

11

‘‘(K) CERTAIN FIREARM OFFENSES.—Any

12

alien who at any time has been convicted under

13

any law of, or who admits having committed or

14

admits committing acts which constitute the es-

15

sential elements of, purchasing, selling, offering

16

for sale, exchanging, using, owning, possessing,

17

or carrying, or of attempting or conspiring to

18

purchase, sell, offer for sale, exchange, use,

19

own, possess, or carry, any weapon, part, or ac-

20

cessory which is a firearm or destructive device

21

(as defined in section 921(a) of title 18, United

22

States Code) in violation of any law is inadmis-

23

sible.

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55

1

‘‘(L) AGGRAVATED FELONS.—Any alien

2

who has been convicted of an aggravated felony

3

at any time is inadmissible.

4

‘‘(M) CRIMES OF DOMESTIC VIOLENCE,

5

STALKING, OR VIOLATION OF PROTECTION OR-

6

DERS, CRIMES AGAINST CHILDREN.—

7

‘‘(i) DOMESTIC VIOLENCE, STALKING,

8

AND CHILD ABUSE.—Any alien who at any

9

time is convicted of, or who admits having

10

committed or admits committing acts

11

which constitute the essential elements of,

12

a crime of domestic violence, a crime of

13

stalking, or a crime of child abuse, child

14

neglect, or child abandonment is inadmis-

15

sible. For purposes of this clause, the term

16

‘crime of domestic violence’ means any

17

crime of violence (as defined in section 16

18

of title 18, United States Code) against a

19

person committed by a current or former

20

spouse of the person, by an individual with

21

whom the person shares a child in com-

22

mon, by an individual who is cohabiting

23

with or has cohabited with the person as a

24

spouse, by an individual similarly situated

25

to a spouse of the person under the domes-

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56

1

tic or family violence laws of the jurisdic-

2

tion where the offense occurs, or by any

3

other individual against a person who is

4

protected from that individual’s acts under

5

the domestic or family violence laws of the

6

United States or any State, Indian tribal

7

government, or unit of local or foreign gov-

8

ernment.

9

‘‘(ii) VIOLATORS OF PROTECTION OR-

10

DERS.—Any alien who at any time is en-

11

joined under a protection order issued by

12

a court and whom the court determines

13

has engaged in conduct that violates the

14

portion of a protection order that involves

15

protection against credible threats of vio-

16

lence, repeated harassment, or bodily in-

17

jury to the person or persons for whom the

18

protection order was issued is inadmissible.

19

For purposes of this clause, the term ‘pro-

20

tection order’ means any injunction issued

21

for the purpose of preventing violent or

22

threatening acts of domestic violence, in-

23

cluding temporary or final orders issued by

24

civil or criminal courts (other than support

25

or child custody orders or provisions)

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57

1

whether obtained by filing an independent

2

action or as a independent order in an-

3

other proceeding.

4

‘‘(iii) WAIVER AUTHORIZED.—The

5

waiver authority available under section

6

237(a)(7) with respect to section

7

237(a)(2)(E)(i) shall be available on a

8

comparable basis with respect to this sub-

9

paragraph.

10

‘‘(iv) CLARIFICATION.—If the convic-

11

tion records do not conclusively establish

12

whether a crime of domestic violence con-

13

stitutes a crime of violence (as defined in

14

section 16 of title 18, United States Code),

15

the Attorney General may consider other

16

evidence related to the conviction that

17

clearly establishes that the conduct for

18

which the alien was engaged constitutes a

19

crime of violence.’’; and

20

(3) in subsection (h)—

21

(A) by striking ‘‘The Attorney General

22

may, in his discretion, waive the application of

23

subparagraphs (A)(i)(I), (B), (D), and (E) of

24

subsection (a)(2)’’ and inserting ‘‘The Attorney

25

General or the Secretary of Homeland Security

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58

1

may, in the discretion of the Attorney General

2

or the Secretary, waive the application of sub-

3

paragraphs (A)(i)(I), (III), (B), (D), (E), (K),

4

and (M) of subsection (a)(2)’’;

5

(B) by striking ‘‘a criminal act involving

6

torture.’’ and inserting ‘‘a criminal act involving

7

torture, or has been convicted of an aggravated

8

felony.’’;

9

(C) by striking ‘‘if either since the date of

10

such admission the alien has been convicted of

11

an aggravated felony or the alien’’ and inserting

12

‘‘if since the date of such admission the alien’’;

13

and

14

(D) by inserting ‘‘or Secretary of Home-

15

land Security’’ after ‘‘the Attorney General’’

16

each place it appears.

17

(b) DEPORTABILITY; CRIMINAL OFFENSES.—Section

18 237(a)(3)(B) of the Immigration and Nationality Act (8

19 U.S.C. 1227(a)(3)(B)) is amended—

20

(1) in clause (ii), by striking ‘‘or’’ at the end;

21

(2) in clause (iii), by inserting ‘‘or’’ at the end;

22

and

23

(3) by inserting after clause (iii) the following:

24

‘‘(iv) of a violation of, or an attempt

25

or a conspiracy to violate, section 1425(a)

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59

1

or (b) of title 18 (relating to the procure-

2

ment of citizenship or naturalization un-

3

lawfully),’’.

4

(c) DEPORTABILITY; OTHER CRIMINAL OFFENSES.—

5 Section 237(a)(2) of the Immigration and Nationality Act

6 (8 U.S.C. 1227(a)(2)) is amended by adding at the end

7 the following:

8

‘‘(G) FRAUD AND RELATED ACTIVITY AS-

9

SOCIATED WITH SOCIAL SECURITY ACT BENE-

10

FITS AND IDENTIFICATION DOCUMENTS.—Any

11

alien who at any time after admission has been

12

convicted of a violation of (or a conspiracy or

13

attempt to violate) section 208 of the Social Se-

14

curity Act (42 U.S.C. 408) (relating to social

15

security account numbers or social security

16

cards) or section 1028 of title 18, United States

17

Code (relating to fraud and related activity in

18

connection with identification) is deportable.’’.

19

(d) EFFECTIVE DATE.—The amendments made by

20 this section shall apply—

21

(1) to any act that occurred before, on, or after

22

the date of the enactment of this Act; and

23

(2) to all aliens who are required to establish

24

admissibility on or after such date, and in all re-

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60

1

moval, deportation, or exclusion proceedings that are

2

filed, pending, or reopened, on or after such date.

3

(e) CONSTRUCTION.—The amendments made by sub-

4 section (a) shall not be construed to create eligibility for

5 relief from removal under former section 212(c) of the Im-

6 migration and Nationality Act where such eligibility did

7 not exist before these amendments became effective.

8 SEC. 303. ESPIONAGE CLARIFICATION.

9

Section 212(a)(3)(A) of the Immigration and Nation-

10 ality Act (8 U.S.C. 1182(a)(3)(A)), is amended to read

11 as follows:

12

‘‘(A) IN GENERAL.—Any alien who a con-

13

sular officer, the Attorney General, or the Sec-

14

retary of Homeland Security knows, or has rea-

15

sonable ground to believe, seeks to enter the

16

United States to engage solely, principally, or

17

incidentally in, or who is engaged in, or with re-

18

spect to clauses (i) and (iii) of this subpara-

19

graph has engaged in—

20

‘‘(i) any activity—

21

‘‘(I) to violate any law of the

22

United States relating to espionage or

23

sabotage; or

24

‘‘(II) to violate or evade any law

25

prohibiting the export from the

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61

1

United States of goods, technology, or

2

sensitive information;

3

‘‘(ii) any other unlawful activity; or

4

‘‘(iii) any activity a purpose of which

5

is the opposition to, or the control or over-

6

throw of, the Government of the United

7

States by force, violence, or other unlawful

8

means;

9

is inadmissible.’’.

10 SEC. 304. PROHIBITION OF THE SALE OF FIREARMS TO, OR

11

THE POSSESSION OF FIREARMS BY, CERTAIN

12

ALIENS.

13

Section 922 of title 18, United States Code, is

14 amended—

15

(1) in subsection (d)(5), in subparagraph (B),

16

by striking ‘‘(y)(2)’’ and all that follows and insert-

17

ing ‘‘(y), is in the United States not as an alien law-

18

fully admitted for permanent residence;’’;

19

(2) in subsection (g)(5), in subparagraph (B),

20

by striking ‘‘(y)(2)’’ and all that follows and insert-

21

ing ‘‘(y), is in the United States not as an alien law-

22

fully admitted for permanent residence;’’; and

23

(3) in subsection (y)—

24

(A) in the header, by striking ‘‘ADMITTED

25

UNDER NONIMMIGRANT VISAS.—’’ and insert-

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62

1

ing ‘‘NOT LAWFULLY ADMITTED FOR PERMA-

2

NENT RESIDENCE.—’’;

3

(B) in paragraph (1), by amending sub-

4

paragraph (B) to read as follows:

5

‘‘(B) the term ‘lawfully admitted for per-

6

manent residence’ has the same meaning as in

7

section 101(a)(20) of the Immigration and Na-

8

tionality Act (8 U.S.C. 1101(a)(20)).’’;

9

(C) in paragraph (2), by striking ‘‘under a

10

nonimmigrant visa’’ and inserting ‘‘but not law-

11

fully admitted for permanent residence’’; and

12

(D) in paragraph (3)(A), by striking ‘‘ad-

13

mitted to the United States under a non-

14

immigrant visa’’ and inserting ‘‘lawfully admit-

15

ted to the United States but not as an alien

16

lawfully admitted for permanent residence’’.

17 SEC. 305. UNIFORM STATUTE OF LIMITATIONS FOR CER-

18

TAIN IMMIGRATION, NATURALIZATION, AND

19

PEONAGE OFFENSES.

20

Section 3291 of title 18, United States Code, is

21 amended by striking ‘‘No person’’ and all that follows

22 through the period at the end and inserting the following:

23 ‘‘No person shall be prosecuted, tried, or punished for a

24 violation of any section of chapters 69 (relating to nation-

25 ality and citizenship offenses) and 75 (relating to pass-

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63

1 port, visa, and immigration offenses), or for a violation

2 of any criminal provision of sections 243, 266, 274, 275,

3 276, 277, or 278 of the Immigration and Nationality Act,

4 or for an attempt or conspiracy to violate any such section,

5 unless the indictment is returned or the information is

6 filed within ten years after the commission of the of-

7 fense.’’.

8 SEC. 306. CONFORMING AMENDMENT TO THE DEFINITION

9

OF RACKETEERING ACTIVITY.

10

Section 1961(1) of title 18, United States Code, is

11 amended by striking ‘‘section 1542’’ through ‘‘section

12 1546 (relating to fraud and misuse of visas, permits, and

13 other documents)’’ and inserting ‘‘sections 1541–1548 (re-

14 lating to passports and visas)’’.

15 SEC. 307. CONFORMING AMENDMENTS FOR THE AGGRA-

16

VATED FELONY DEFINITION.

17

(a) IN GENERAL.—Subparagraph (P) of section

18 101(a)(43) of the Immigration and Nationality Act (8

19 U.S.C. 1101(a)(43)) is amended—

20

(1) by striking ‘‘(i) which either is falsely mak-

21

ing, forging, counterfeiting, mutilating, or altering a

22

passport or instrument in violation of section 1543

23

of title 18, United States Code, or is described in

24

section 1546(a) of such title (relating to document

25

fraud) and (ii)’’ and inserting ‘‘which is described in

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64

1

any section of chapter 75 of title 18, United States

2

Code,’’; and

3

(2) by inserting after ‘‘first offense’’ the fol-

4

lowing: ‘‘(i) that is not described in section 1548 of

5

such title (relating to increased penalties), and (ii)’’.

6

(b) EFFECTIVE DATE.—The amendment made by

7 subsection (a) shall take effect on the date of the enact-

8 ment of this Act and shall apply to acts that occur before,

9 on, or after the date of the enactment of this Act.

10 SEC. 308. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT

11

OF STATUS FOR AGGRAVATED FELONS.

12

(a) IN GENERAL.—Section 209(c) of the Immigration

13 and Nationality Act (8 U.S.C. 1159(c)) is amended by

14 adding at the end thereof the following: ‘‘However, an

15 alien who is convicted of an aggravated felony is not eligi-

16 ble for a waiver or for adjustment of status under this

17 section.’’.

18

(b) EFFECTIVE DATE.—The amendment made by

19 subsection (a) shall apply—

20

(1) to any act that occurred before, on, or after

21

the date of the enactment of this Act; and

22

(2) to all aliens who are required to establish

23

admissibility on or after such date, and in all re-

24

moval, deportation, or exclusion proceedings that are

25

filed, pending, or reopened, on or after such date.

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65 1 SEC. 309. PRECLUDING WITHHOLDING OF REMOVAL FOR

2

AGGRAVATED FELONS.

3

(a) IN GENERAL.—Section 241(b)(3)(B) (8 U.S.C.

4 1231(b)(3)(B)), as amended by section 201, is further

5 amended by inserting after clause (v), as inserted by sec-

6 tion 201, the following:

7

‘‘(vi) the alien is convicted of an ag-

8

gravated felony.’’.

9

(b) EFFECTIVE DATE.—The amendment made by

10 subsection (a) shall apply—

11

(1) to any act that occurred before, on, or after

12

the date of the enactment of this Act; and

13

(2) to all aliens who are required to establish

14

admissibility on or after such date, and in all re-

15

moval, deportation, or exclusion proceedings that are

16

filed, pending, or reopened on or after such date.

17 SEC. 310. INADMISSIBILITY, DEPORTABILITY, AND DETEN-

18

TION OF DRUNK DRIVERS.

19

(a) IN GENERAL.—Section 101(a)(43) of the Immi-

20 gration and Nationality Act (8 U.S.C. 1101(a)(43)) (as

21 amended by this Act) is further amended—

22

(1) in subparagraph (T), by striking ‘‘and’’;

23

(2) in subparagraph (U), by striking the period

24

at the end and inserting ‘‘; and’’; and

25

(3) by inserting after subparagraph (U) the fol-

26

lowing:

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66

1

‘‘(V) a second or subsequent conviction for

2

driving while intoxicated (including a conviction

3

for driving while under the influence of or im-

4

paired by alcohol or drugs) without regard to

5

whether the conviction is classified as a mis-

6

demeanor or felony under State law.’’.

7

(b) DETENTION.—Section 236(c)(1) of the Immigra-

8 tion and Nationality Act (8 U.S.C. 1226(c)(1)) is amend-

9 ed—

10

(1) in subparagraph (C), by striking ‘‘or’’ at

11

the end;

12

(2) in subparagraph (D), by adding ‘‘or’’ at the

13

end; and

14

(3) by inserting after subparagraph (D) the fol-

15

lowing:

16

‘‘(E) is unlawfully present in the United

17

States and has been convicted one or multiple

18

times for driving while intoxicated (including a

19

conviction for driving while under the influence

20

or impaired by alcohol or drugs) without regard

21

to whether the conviction is classified as a mis-

22

demeanor or felony under State law,’’.

23

(c) EFFECTIVE DATE.—The amendments made by

24 this section shall take effect on the date of the enactment

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67

1 of this Act and apply to convictions entered on or after

2 such date.

3 SEC. 311. DETENTION OF DANGEROUS ALIENS.

4

(a) IN GENERAL.—Section 241(a) of the Immigra-

5 tion and Nationality Act (8 U.S.C. 1231(a)) is amended—

6

(1) by striking ‘‘Attorney General’’ each place

7

it appears, except for the first reference in para-

8

graph (4)(B)(i), and inserting ‘‘Secretary of Home-

9

land Security’’;

10

(2) in paragraph (1), by amending subpara-

11

graph (B) to read as follows:

12

‘‘(B) BEGINNING OF PERIOD.—The re-

13

moval period begins on the latest of the fol-

14

lowing:

15

‘‘(i) The date the order of removal be-

16

comes administratively final.

17

‘‘(ii) If the alien is not in the custody

18

of the Secretary on the date the order of

19

removal becomes administratively final, the

20

date the alien is taken into such custody.

21

‘‘(iii) If the alien is detained or con-

22

fined (except under an immigration proc-

23

ess) on the date the order of removal be-

24

comes administratively final, the date the

25

alien is taken into the custody of the Sec-

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68

1

retary, after the alien is released from such

2

detention or confinement.’’;

3

(3) in paragraph (1), by amending subpara-

4

graph (C) to read as follows:

5

‘‘(C) SUSPENSION OF PERIOD.—

6

‘‘(i) EXTENSION.—The removal period

7

shall be extended beyond a period of 90

8

days and the Secretary may, in the Sec-

9

retary’s sole discretion, keep the alien in

10

detention during such extended period if—

11

‘‘(I) the alien fails or refuses to

12

make all reasonable efforts to comply

13

with the removal order, or to fully co-

14

operate with the Secretary’s efforts to

15

establish the alien’s identity and carry

16

out the removal order, including mak-

17

ing timely application in good faith

18

for travel or other documents nec-

19

essary to the alien’s departure or con-

20

spires or acts to prevent the alien’s

21

removal that is subject to an order of

22

removal;

23

‘‘(II) a court, the Board of Immi-

24

gration Appeals, or an immigration

25

judge orders a stay of removal of an

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69

1

alien who is subject to an administra-

2

tively final order of removal;

3

‘‘(III) the Secretary transfers

4

custody of the alien pursuant to law

5

to another Federal agency or a State

6

or local government agency in connec-

7

tion with the official duties of such

8

agency; or

9

‘‘(IV) a court or the Board of

10

Immigration Appeals orders a remand

11

to an immigration judge or the Board

12

of Immigration Appeals, during the

13

time period when the case is pending

14

a decision on remand (with the re-

15

moval period beginning anew on the

16

date that the alien is ordered removed

17

on remand).

18

‘‘(ii) RENEWAL.—If the removal pe-

19

riod has been extended under clause (C)(i),

20

a new removal period shall be deemed to

21

have begun on the date—

22

‘‘(I) the alien makes all reason-

23

able efforts to comply with the re-

24

moval order, or to fully cooperate with

25

the Secretary’s efforts to establish the

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70

1

alien’s identity and carry out the re-

2

moval order;

3

‘‘(II) the stay of removal is no

4

longer in effect; or

5

‘‘(III) the alien is returned to the

6

custody of the Secretary.

7

‘‘(iii) MANDATORY DETENTION FOR

8

CERTAIN ALIENS.—In the case of an alien

9

described in subparagraphs (A) through

10

(D) of section 236(c)(1), the Secretary

11

shall keep that alien in detention during

12

the extended period described in clause (i).

13

‘‘(iv) SOLE FORM OF RELIEF.—An

14

alien may seek relief from detention under

15

this subparagraph only by filing an appli-

16

cation for a writ of habeas corpus in ac-

17

cordance with chapter 153 of title 28,

18

United States Code. No alien whose period

19

of detention is extended under this sub-

20

paragraph shall have the right to seek re-

21

lease on bond.’’;

22

(4) in paragraph (3)—

23

(A) by adding after ‘‘If the alien does not

24

leave or is not removed within the removal pe-

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71

1

riod’’ the following: ‘‘or is not detained pursu-

2

ant to paragraph (6) of this subsection’’; and

3

(B) by striking subparagraph (D) and in-

4

serting the following:

5

‘‘(D) to obey reasonable restrictions on the

6

alien’s conduct or activities that the Secretary

7

prescribes for the alien, in order to prevent the

8

alien from absconding, for the protection of the

9

community, or for other purposes related to the

10

enforcement of the immigration laws.’’;

11

(5) in paragraph (4)(A), by striking ‘‘paragraph

12

(2)’’ and inserting ‘‘subparagraph (B)’’; and

13

(6) by striking paragraph (6) and inserting the

14

following:

15

‘‘(6) ADDITIONAL RULES FOR DETENTION OR

16

RELEASE OF CERTAIN ALIENS.—

17

‘‘(A) DETENTION REVIEW PROCESS FOR

18

COOPERATIVE ALIENS ESTABLISHED.—For an

19

alien who is not otherwise subject to mandatory

20

detention, who has made all reasonable efforts

21

to comply with a removal order and to cooper-

22

ate fully with the Secretary of Homeland Secu-

23

rity’s efforts to establish the alien’s identity and

24

carry out the removal order, including making

25

timely application in good faith for travel or

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72

1

other documents necessary to the alien’s depar-

2

ture, and who has not conspired or acted to

3

prevent removal, the Secretary shall establish

4

an administrative review process to determine

5

whether the alien should be detained or released

6

on conditions. The Secretary shall make a de-

7

termination whether to release an alien after

8

the removal period in accordance with subpara-

9

graph (B). The determination shall include con-

10

sideration of any evidence submitted by the

11

alien, and may include consideration of any

12

other evidence, including any information or as-

13

sistance provided by the Secretary of State or

14

other Federal official and any other information

15

available to the Secretary of Homeland Security

16

pertaining to the ability to remove the alien.

17

‘‘(B) AUTHORITY TO DETAIN BEYOND RE-

18

MOVAL PERIOD.—

19

‘‘(i) IN GENERAL.—The Secretary of

20

Homeland Security, in the exercise of the

21

Secretary’s sole discretion, may continue to

22

detain an alien for 90 days beyond the re-

23

moval period (including any extension of

24

the removal period as provided in para-

25

graph (1)(C)). An alien whose detention is

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73

1

extended under this subparagraph shall

2

have no right to seek release on bond.

3

‘‘(ii) SPECIFIC CIRCUMSTANCES.—The

4

Secretary of Homeland Security, in the ex-

5

ercise of the Secretary’s sole discretion,

6

may continue to detain an alien beyond the

7

90 days authorized in clause (i)—

8

‘‘(I) until the alien is removed, if

9

the Secretary, in the Secretary’s sole

10

discretion, determines that there is a

11

significant likelihood that the alien—

12

‘‘(aa) will be removed in the

13

reasonably foreseeable future; or

14

‘‘(bb) would be removed in

15

the reasonably foreseeable future,

16

or would have been removed, but

17

for the alien’s failure or refusal

18

to make all reasonable efforts to

19

comply with the removal order,

20

or to cooperate fully with the

21

Secretary’s efforts to establish

22

the alien’s identity and carry out

23

the removal order, including

24

making timely application in

25

good faith for travel or other doc-

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74

1

uments necessary to the alien’s

2

departure, or conspires or acts to

3

prevent removal;

4

‘‘(II) until the alien is removed,

5

if the Secretary of Homeland Security

6

certifies in writing—

7

‘‘(aa) in consultation with

8

the Secretary of Health and

9

Human Services, that the alien

10

has a highly contagious disease

11

that poses a threat to public safe-

12

ty;

13

‘‘(bb) after receipt of a writ-

14

ten recommendation from the

15

Secretary of State, that release

16

of the alien is likely to have seri-

17

ous adverse foreign policy con-

18

sequences for the United States;

19

‘‘(cc) based on information

20

available to the Secretary of

21

Homeland Security (including

22

classified, sensitive, or national

23

security information, and without

24

regard to the grounds upon

25

which the alien was ordered re-

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75

1

moved), that there is reason to

2

believe that the release of the

3

alien would threaten the national

4

security of the United States; or

5

‘‘(dd) that the release of the

6

alien will threaten the safety of

7

the community or any person,

8

conditions of release cannot rea-

9

sonably be expected to ensure the

10

safety of the community or any

11

person, and either (AA) the alien

12

has been convicted of one or

13

more aggravated felonies (as de-

14

fined in section 101(a)(43)(A))

15

or of one or more crimes identi-

16

fied by the Secretary of Home-

17

land Security by regulation, or of

18

one or more attempts or conspir-

19

acies to commit any such aggra-

20

vated felonies or such identified

21

crimes, if the aggregate term of

22

imprisonment for such attempts

23

or conspiracies is at least 5

24

years; or (BB) the alien has com-

25

mitted one or more crimes of vio-

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76

1

lence (as defined in section 16 of

2

title 18, United States Code, but

3

not including a purely political

4

offense) and, because of a mental

5

condition or personality disorder

6

and behavior associated with that

7

condition or disorder, the alien is

8

likely to engage in acts of vio-

9

lence in the future; or

10

‘‘(III) pending a certification

11

under subclause (II), so long as the

12

Secretary of Homeland Security has

13

initiated the administrative review

14

process not later than 30 days after

15

the expiration of the removal period

16

(including any extension of the re-

17

moval period, as provided in para-

18

graph (1)(C)).

19

‘‘(iii) NO RIGHT TO BOND HEARING.—

20

An alien whose detention is extended under

21

this subparagraph shall have no right to

22

seek release on bond, including by reason

23

of a certification under clause (ii)(II).

24

‘‘(C) RENEWAL AND DELEGATION OF CER-

25

TIFICATION.—

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77

1

‘‘(i) RENEWAL.—The Secretary of

2

Homeland Security may renew a certifi-

3

cation under subparagraph (B)(ii)(II)

4

every 6 months, after providing an oppor-

5

tunity for the alien to request reconsider-

6

ation of the certification and to submit

7

documents or other evidence in support of

8

that request. If the Secretary does not

9

renew a certification, the Secretary may

10

not continue to detain the alien under sub-

11

paragraph (B)(ii)(II).

12

‘‘(ii) DELEGATION.—Notwithstanding

13

section 103, the Secretary of Homeland

14

Security may not delegate the authority to

15

make or renew a certification described in

16

item (bb), (cc), or (dd) of subparagraph

17

(B)(ii)(II) below the level of the Assistant

18

Secretary for Immigration and Customs

19

Enforcement.

20

‘‘(iii) HEARING.—The Secretary of

21

Homeland Security may request that the

22

Attorney General or the Attorney General’s

23

designee provide for a hearing to make the

24

determination described in item (dd)(BB)

25

of subparagraph (B)(ii)(II).

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1

‘‘(D) RELEASE ON CONDITIONS.—If it is

2

determined that an alien should be released

3

from detention by a Federal court, the Board of

4

Immigration Appeals, or if an immigration

5

judge orders a stay of removal, the Secretary of

6

Homeland Security, in the exercise of the Sec-

7

retary’s discretion, may impose conditions on

8

release as provided in paragraph (3).

9

‘‘(E) REDETENTION.—The Secretary of

10

Homeland Security, in the exercise of the Sec-

11

retary’s discretion, without any limitations

12

other than those specified in this section, may

13

again detain any alien subject to a final re-

14

moval order who is released from custody, if re-

15

moval becomes likely in the reasonably foresee-

16

able future, the alien fails to comply with the

17

conditions of release, or to continue to satisfy

18

the conditions described in subparagraph (A),

19

or if, upon reconsideration, the Secretary, in

20

the Secretary’s sole discretion, determines that

21

the alien can be detained under subparagraph

22

(B). This section shall apply to any alien re-

23

turned to custody pursuant to this subpara-

24

graph, as if the removal period terminated on

25

the day of the redetention.

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79

1

‘‘(F) REVIEW OF DETERMINATIONS BY

2

SECRETARY.—A determination by the Secretary

3

under this paragraph shall not be subject to re-

4

view by any other agency.’’.

5

(b) DETENTION OF ALIENS DURING REMOVAL PRO-

6 CEEDINGS.—

7

(1) CLERICAL AMENDMENT.—(A) Section 236

8

of the Immigration and Nationality Act (8 U.S.C.

9

1226) is amended by striking ‘‘Attorney General’’

10

each place it appears (except in the second place

11

that term appears in section 236(a)) and inserting

12

‘‘Secretary of Homeland Security’’.

13

(B) Section 236(a) of such Act (8 U.S.C.

14

1226(a)) is amended by inserting ‘‘the Secretary of

15

Homeland Security or’’ before ‘‘the Attorney Gen-

16

eral—’’.

17

(C) Section 236(e) of such Act (8 U.S.C.

18

1226(e)) is amended by striking ‘‘Attorney Gen-

19

eral’s’’ and inserting ‘‘Secretary of Homeland Secu-

20

rity’s’’.

21

(2) LENGTH OF DETENTION.—Section 236 of

22

such Act (8 U.S.C. 1226) is amended by adding at

23

the end the following:

24

‘‘(f) LENGTH OF DETENTION.—

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80

1

‘‘(1) IN GENERAL.—Notwithstanding any other

2

provision of this section, an alien may be detained,

3

and for an alien described in subsection (c) shall be

4

detained, under this section without time limitation,

5

except as provided in subsection (h), during the

6

pendency of removal proceedings.

7

‘‘(2) CONSTRUCTION.—The length of detention

8

under this section shall not affect detention under

9

section 241.’’.

10

(3) DETENTION OF CRIMINAL ALIENS.—Section

11

236(c)(1) of the Immigration and Nationality Act (8

12

U.S.C. 1226(c)(1)) (as amended by section 310(b))

13

is further amended, in the matter following subpara-

14

graph (E) to read as follows:

15

‘‘any time after the alien is released, without regard

16

to whether an alien is released related to any activ-

17

ity, offense, or conviction described in this para-

18

graph; to whether the alien is released on parole, su-

19

pervised release, or probation; or to whether the

20

alien may be arrested or imprisoned again for the

21

same offense. If the activity described in this para-

22

graph does not result in the alien being taken into

23

custody by any person other than the Secretary,

24

then when the alien is brought to the attention of

25

the Secretary or when the Secretary determines it is

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81

1

practical to take such alien into custody, the Sec-

2

retary shall take such alien into custody.’’.

3

(4) ADMINISTRATIVE REVIEW.—Section 236 of

4

the Immigration and Nationality Act (8 U.S.C.

5

1226), as amended by paragraph (2), is further

6

amended by adding at the end the following:

7

‘‘(g) ADMINISTRATIVE REVIEW.—

8

‘‘(1) IN GENERAL.—The Attorney General’s re-

9

view of the Secretary’s custody determinations under

10

subsection (a) for the following classes of aliens shall

11

be limited to whether the alien may be detained, re-

12

leased on bond (of at least $1,500 with security ap-

13

proved by the Secretary), or released with no bond:

14

‘‘(A) Aliens in exclusion proceedings.

15

‘‘(B) Aliens described in section 212(a)(3)

16

or 237(a)(4).

17

‘‘(C) Aliens described in subsection (c).

18

‘‘(2) SPECIAL RULE.—

19

‘‘(h) RELEASE ON BOND.—

20

‘‘(1) IN GENERAL.—An alien detained under

21

subsection (a) may seek release on bond. No bond

22

may be granted except to an alien who establishes

23

by clear and convincing evidence that the alien is not

24

a flight risk or a risk to another person or the com-

25

munity.

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82

1

‘‘(2) CERTAIN ALIENS INELIGIBLE.—No alien

2

detained under subsection (c) may seek release on

3

bond.’’.

4

(5) CLERICAL AMENDMENTS.—(A) Section

5

236(a)(2)(B) of the Immigration and Nationality

6

Act (8 U.S.C. 1226(a)(2)(B)) is amended by strik-

7

ing ‘‘conditional parole’’ and inserting ‘‘recog-

8

nizance’’.

9

(B) Section 236(b) of such Act (8 U.S.C.

10

1226(b)) is amended by striking ‘‘parole’’ and in-

11

serting ‘‘recognizance’’.

12

(c) SEVERABILITY.—If any of the provisions of this

13 section or any amendment by this section, or the applica-

14 tion of any such provision to any person or circumstance,

15 is held to be invalid for any reason, the remainder of this

16 section and of amendments made by this section, and the

17 application of the provisions and of the amendments made

18 by this section to any other person or circumstance shall

19 not be affected by such holding.

20

(d) EFFECTIVE DATES.—

21

(1) The amendments made by subsection (a)

22

shall take effect upon the date of enactment of this

23

Act, and section 241 of the Immigration and Na-

24

tionality Act, as so amended, shall in addition apply

25

to—

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83

1

(A) all aliens subject to a final administra-

2

tive removal, deportation, or exclusion order

3

that was issued before, on, or after the date of

4

the enactment of this Act; and

5

(B) acts and conditions occurring or exist-

6

ing before, on, or after such date.

7

(2) The amendments made by subsection (b)

8

shall take effect upon the date of the enactment of

9

this Act, and section 236 of the Immigration and

10

Nationality Act, as so amended, shall in addition

11

apply to any alien in detention under provisions of

12

such section on or after such date.

13 SEC. 312. GROUNDS OF INADMISSIBILITY AND DEPORT-

14

ABILITY FOR ALIEN GANG MEMBERS.

15

(a) DEFINITION OF GANG MEMBER.—Section 101(a)

16 of the Immigration and Nationality Act (8 U.S.C.

17 1101(a)) is amended by adding at the end the following:

18

‘‘(53)(A) The term ‘criminal gang’ means an ongoing

19 group, club, organization, or association of 5 or more per-

20 sons that has as one of its primary purposes the commis-

21 sion of 1 or more of the following criminal offenses and

22 the members of which engage, or have engaged within the

23 past 5 years, in a continuing series of such offenses, or

24 that has been designated as a criminal gang by the Sec-

25 retary of Homeland Security, in consultation with the At-

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84 1 torney General, as meeting these criteria. The offenses de-

2 scribed, whether in violation of Federal or State law or

3 foreign law and regardless of whether the offenses oc-

4 curred before, on, or after the date of the enactment of

5 this paragraph, are the following:

6

‘‘(i) A ‘felony drug offense’ (as defined in sec-

7

tion 102 of the Controlled Substances Act (21

8

U.S.C. 802)).

9

‘‘(ii) An offense under section 274 (relating to

10

bringing in and harboring certain aliens), section

11

277 (relating to aiding or assisting certain aliens to

12

enter the United States), or section 278 (relating to

13

importation of alien for immoral purpose).

14

‘‘(iii) A crime of violence (as defined in section

15

16 of title 18, United States Code).

16

‘‘(iv) A crime involving obstruction of justice,

17

tampering with or retaliating against a witness, vic-

18

tim, or informant, or burglary.

19

‘‘(v) Any conduct punishable under sections

20

1028 and 1029 of title 18, United States Code (re-

21

lating to fraud and related activity in connection

22

with identification documents or access devices), sec-

23

tions 1581 through 1594 of such title (relating to

24

peonage, slavery and trafficking in persons), section

25

1952 of such title (relating to interstate and foreign

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85

1

travel or transportation in aid of racketeering enter-

2

prises), section 1956 of such title (relating to the

3

laundering of monetary instruments), section 1957

4

of such title (relating to engaging in monetary trans-

5

actions in property derived from specified unlawful

6

activity), or sections 2312 through 2315 of such title

7

(relating to interstate transportation of stolen motor

8

vehicles or stolen property).

9

‘‘(vi) A conspiracy to commit an offense de-

10

scribed in clauses (i) through (v).

11

‘‘(B) Notwithstanding any other provision of law (in-

12 cluding any effective date), the term applies regardless of

13 whether the conduct occurred before, on, or after the date

14 of the enactment of this paragraph.’’.

15

(b) INADMISSIBILITY.—Section 212(a)(2) of such Act

16 (8 U.S.C. 1182(a)(2)), as amended by section 302(a)(2)

17 of this Act, is further amended by adding at the end the

18 following:

19

‘‘(N) ALIENS ASSOCIATED WITH CRIMINAL

20

GANGS.—Any alien is inadmissible who a con-

21

sular officer, the Secretary of Homeland Secu-

22

rity, or the Attorney General knows or has rea-

23

son to believe—

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86

1

‘‘(i) to be or to have been a member

2

of a criminal gang (as defined in section

3

101(a)(53)); or

4

‘‘(ii) to have participated in the activi-

5

ties of a criminal gang (as defined in sec-

6

tion 101(a)(53)), knowing or having reason

7

to know that such activities will promote,

8

further, aid, or support the illegal activity

9

of the criminal gang.’’.

10

(c) DEPORTABILITY.—Section 237(a)(2) of the Im-

11 migration and Nationality Act (8 U.S.C. 1227(a)(2)), as

12 amended by section 302(c) of this Act, is further amended

13 by adding at the end the following:

14

‘‘(H) ALIENS ASSOCIATED WITH CRIMINAL

15

GANGS.—Any alien is deportable who the Sec-

16

retary of Homeland Security or the Attorney

17

General knows or has reason to believe—

18

‘‘(i) is or has been a member of a

19

criminal gang (as defined in section

20

101(a)(53)); or

21

‘‘(ii) has participated in the activities

22

of a criminal gang (as so defined), knowing

23

or having reason to know that such activi-

24

ties will promote, further, aid, or support

25

the illegal activity of the criminal gang.’’.

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87

1

(d) DESIGNATION.—

2

(1) IN GENERAL.—Chapter 2 of title II of the

3

Immigration and Nationality Act (8 U.S.C. 1182) is

4

amended by inserting after section 219 the fol-

5

lowing:

6

‘‘DESIGNATION

7

‘‘SEC. 220. (a) IN GENERAL.—The Secretary of

8 Homeland Security, in consultation with the Attorney

9 General, and the Secretary of State may designate a group

10 or association as a criminal street gang if their conduct

11 is described in section 101(a)(53) or if the group or asso-

12 ciation conduct poses a significant risk that threatens the

13 security and the public safety of United States nationals

14 or the national security, homeland security, foreign policy,

15 or economy of the United States.

16

‘‘(b) EFFECTIVE DATE.—Designations under sub-

17 section (a) shall remain in effect until the designation is

18 revoked after consultation between the Secretary of Home-

19 land Security, the Attorney General, and the Secretary of

20 State or is terminated in accordance with Federal law.’’.

21

(2) CLERICAL AMENDMENT.—The table of con-

22

tents for such Act is amended by inserting after the

23

item relating to section 219 the following:

‘‘220. Designation.’’.

24

(e) MANDATORY DETENTION OF CRIMINAL STREET

25 GANG MEMBERS.—

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88

1

(1) IN GENERAL.—Section 236(c)(1)(D) of the

2

Immigration and Nationality Act (8 U.S.C.

3

1226(c)(1)(D)) is amended—

4

(A) by inserting ‘‘or 212(a)(2)(N)’’ after

5

‘‘212(a)(3)(B)’’; and

6

(B) by inserting ‘‘237(a)(2)(H) or’’ before

7

‘‘237(a)(4)(B)’’.

8

(2) ANNUAL REPORT.—Not later than March 1

9

of each year (beginning 1 year after the date of the

10

enactment of this Act), the Secretary of Homeland

11

Security, after consultation with the appropriate

12

Federal agencies, shall submit a report to the Com-

13

mittees on the Judiciary of the House of Represent-

14

atives and of the Senate on the number of aliens de-

15

tained under the amendments made by paragraph

16

(1).

17

(f) ASYLUM CLAIMS BASED ON GANG AFFILI-

18 ATION.—

19

(1) INAPPLICABILITY OF RESTRICTION ON RE-

20

MOVAL TO CERTAIN COUNTRIES.—Section

21

241(b)(3)(B) of the Immigration and Nationality

22

Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the

23

matter preceding clause (i), by inserting ‘‘who is de-

24

scribed in section 212(a)(2)(N)(i) or section

25

237(a)(2)(H)(i) or who is’’ after ‘‘to an alien’’.

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1

(2) INELIGIBILITY FOR ASYLUM.—Section

2

208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A))

3

(as amended by this Act) is further amended—

4

(A) in clause (v), by striking ‘‘or’’ at the

5

end;

6

(B) by redesignating clause (vi) as clause

7

(vii); and

8

(C) by inserting after clause (v) the fol-

9

lowing:

10

‘‘(vi) the alien is described in section

11

212(a)(2)(N)(i) or section 237(a)(2)(H)(i)

12

(relating to participation in criminal street

13

gangs); or’’.

14

(g) TEMPORARY PROTECTED STATUS.—Section 244

15 of such Act (8 U.S.C. 1254a) is amended—

16

(1) by striking ‘‘Attorney General’’ each place

17

it appears and inserting ‘‘Secretary of Homeland Se-

18

curity’’;

19

(2) in subparagraph (c)(2)(B)—

20

(A) in clause (i), by striking ‘‘or’’ at the

21

end;

22

(B) in clause (ii), by striking the period

23

and inserting ‘‘; or’’; and

24

(C) by adding at the end the following:

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1

‘‘(iii) the alien is, or at any time after

2

admission has been, a member of a crimi-

3

nal gang (as defined in section

4

101(a)(53)).’’; and

5

(3) in subsection (d)—

6

(A) by striking paragraph (3); and

7

(B) in paragraph (4), by adding at the end

8

the following: ‘‘The Secretary of Homeland Se-

9

curity may detain an alien provided temporary

10

protected status under this section whenever

11

appropriate under any other provision of law.’’.

12

(h) EFFECTIVE DATE.—The amendments made by

13 this section shall take effect on the date of the enactment

14 of this Act and shall apply to acts that occur before, on,

15 or after the date of the enactment of this Act.

16 SEC. 313. EXTENSION OF IDENTITY THEFT OFFENSES.

17

Section 1028A of title 18, United States Code, is

18 amended by adding at the end the following:

19

‘‘(d) STATE OF MIND PROOF REQUIREMENT.—In a

20 prosecution for a violation of subsection (a)(1) predicated

21 on a violation described in subsection (c)(2), (6), (7), (9),

22 or (10) of this section, the Government need not prove

23 that the defendant knew the means of identification was

24 of another person.’’.

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91 1 SEC. 314. LAUNDERING OF MONETARY INSTRUMENTS.

2

(a) ADDITIONAL PREDICATE OFFENSES.—Section

3 1956(c)(7)(D) of title 18, United States Code, is amend-

4 ed—

5

(1) by inserting ‘‘section 1590 (relating to traf-

6

ficking with respect to peonage, slavery, involuntary

7

servitude, or forced labor),’’ after ‘‘section 1363 (re-

8

lating to destruction of property within the special

9

maritime and territorial jurisdiction),’’; and

10

(2) by inserting ‘‘section 274(a) of the Immi-

11

gration and Nationality Act (8 U.S.C.1324(a)) (re-

12

lating to bringing in and harboring certain aliens),’’

13

after ‘‘section 590 of the Tariff Act of 1930 (19

14

U.S.C. 1590) (relating to aviation smuggling),’’.

15

(b) INTENT TO CONCEAL OR DISGUISE.—Section

16 1956(a) of title 18, United States Code, is amended—

17

(1) in paragraph (1) so that subparagraph (B)

18

reads as follows:

19

‘‘(B) knowing that the transaction—

20

‘‘(i) conceals or disguises, or is intended to

21

conceal or disguise, the nature, source, location,

22

ownership, or control of the proceeds of some

23

form of unlawful activity; or

24

‘‘(ii) avoids, or is intended to avoid, a

25

transaction reporting requirement under State

26

or Federal law,’’; and

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92

1

(2) in paragraph (2) so that subparagraph (B)

2

reads as follows:

3

‘‘(B) knowing that the monetary instrument or

4

funds involved in the transportation, transmission,

5

or transfer represent the proceeds of some form of

6

unlawful activity, and knowing that such transpor-

7

tation, transmission, or transfer—

8

‘‘(i) conceals or disguises, or is intended to

9

conceal or disguise, the nature, source, location,

10

ownership, or control of the proceeds of some

11

form of unlawful activity; or

12

‘‘(ii) avoids, or is intended to avoid, a

13

transaction reporting requirement under State

14

or Federal law,’’.

15 SEC. 315. PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.

16

(a) IN GENERAL.—Section 275 of the Immigration

17 and Nationality Act (8 U.S.C. 1325) is amended to read

18 as follows:

19

‘‘SEC. 275. (a) IN GENERAL.—

20

‘‘(1) ILLEGAL ENTRY OR PRESENCE.—An alien

21

shall be subject to the penalties set forth in para-

22

graph (2) if the alien—

23

‘‘(A) knowingly enters or crosses the bor-

24

der into the United States at any time or place

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93

1

other than as designated by the Secretary of

2

Homeland Security;

3

‘‘(B) knowingly eludes, at any time or

4

place, examination or inspection by an author-

5

ized immigration, customs, or agriculture offi-

6

cer (including by failing to stop at the com-

7

mand of such officer);

8

‘‘(C) knowingly enters or crosses the bor-

9

der to the United States and, upon examination

10

or inspection, knowingly makes a false or mis-

11

leading representation or the knowing conceal-

12

ment of a material fact (including such rep-

13

resentation or concealment in the context of ar-

14

rival, reporting, entry, or clearance require-

15

ments of the customs laws, immigration laws,

16

agriculture laws, or shipping laws);

17

‘‘(D) knowingly violates the terms or con-

18

ditions of the alien’s admission or parole into

19

the United States; or

20

‘‘(E) knowingly is unlawfully present in the

21

United States (as defined in section

22

212(a)(9)(B)(ii) subject to the exceptions set

23

for in section 212(a)(9)(B)(iii)).

24

‘‘(2) CRIMINAL PENALTIES.—Any alien who

25

violates any provision under paragraph (1)—

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94

1

‘‘(A) shall, for the first violation, be fined

2

under title 18, United States Code, imprisoned

3

not more than 6 months, or both;

4

‘‘(B) shall, for a second or subsequent vio-

5

lation, or following an order of voluntary depar-

6

ture, be fined under such title, imprisoned not

7

more than 2 years (or not more than 6 months

8

in the case of a second or subsequent violation

9

of paragraph (1)(E)), or both;

10

‘‘(C) if the violation occurred after the

11

alien had been convicted of 3 or more mis-

12

demeanors or for a felony, shall be fined under

13

such title, imprisoned not more than 10 years,

14

or both;

15

‘‘(D) if the violation occurred after the

16

alien had been convicted of a felony for which

17

the alien received a term of imprisonment of

18

not less than 30 months, shall be fined under

19

such title, imprisoned not more than 15 years,

20

or both; and

21

‘‘(E) if the violation occurred after the

22

alien had been convicted of a felony for which

23

the alien received a term of imprisonment of

24

not less than 60 months, such alien shall be

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95

1

fined under such title, imprisoned not more

2

than 20 years, or both.

3

‘‘(3) PRIOR CONVICTIONS.—The prior convic-

4

tions described in subparagraphs (C) through (E) of

5

paragraph (2) are elements of the offenses described

6

and the penalties in such subparagraphs shall apply

7

only in cases in which the conviction or convictions

8

that form the basis for the additional penalty are—

9

‘‘(A) alleged in the indictment or informa-

10

tion; and

11

‘‘(B) proven beyond a reasonable doubt at

12

trial or admitted by the defendant.

13

‘‘(4) DURATION OF OFFENSE.—An offense

14

under this subsection continues until the alien is dis-

15

covered within the United States by an immigration,

16

customs, or agriculture officer.

17

‘‘(5) ATTEMPT.—Whoever attempts to commit

18

any offense under this section shall be punished in

19

the same manner as for a completion of such of-

20

fense.

21

‘‘(b) IMPROPER TIME OR PLACE; CIVIL PEN-

22 ALTIES.—Any alien who is apprehended while entering, at-

23 tempting to enter, or knowingly crossing or attempting to

24 cross the border to the United States at a time or place

25 other than as designated by immigration officers shall be

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96

1 subject to a civil penalty, in addition to any criminal or

2 other civil penalties that may be imposed under any other

3 provision of law, in an amount equal to—

4

‘‘(1) not less than $50 or more than $250 for

5

each such entry, crossing, attempted entry, or at-

6

tempted crossing; or

7

‘‘(2) twice the amount specified in paragraph

8

(1) if the alien had previously been subject to a civil

9

penalty under this subsection.’’.

10

(b) CLERICAL AMENDMENT.—The table of contents

11 for the Immigration and Nationality Act is amended by

12 striking the item relating to section 275 and inserting the

13 following:

‘‘Sec. 275. Illegal entry or presence.’’.

14 SEC. 316. ILLEGAL REENTRY.

15

Section 276 of the Immigration and Nationality Act

16 (8 U.S.C. 1326) is amended to read as follows:

17

‘‘REENTRY OF REMOVED ALIEN

18

‘‘SEC. 276. (a) REENTRY AFTER REMOVAL.—Any

19 alien who has been denied admission, excluded, deported,

20 or removed, or who has departed the United States while

21 an order of exclusion, deportation, or removal is out-

22 standing, and subsequently enters, attempts to enter,

23 crosses the border to, attempts to cross the border to, or

24 is at any time found in the United States, shall be fined

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97

1 under title 18, United States Code, imprisoned not more

2 than 2 years, or both.

3

‘‘(b) REENTRY OF CRIMINAL OFFENDERS.—Not-

4 withstanding the penalty provided in subsection (a), if an

5 alien described in that subsection was convicted before

6 such removal or departure—

7

‘‘(1) for 3 or more misdemeanors or for a fel-

8

ony, the alien shall be fined under title 18, United

9

States Code, imprisoned not more than 10 years, or

10

both;

11

‘‘(2) for a felony for which the alien was sen-

12

tenced to a term of imprisonment of not less than

13

30 months, the alien shall be fined under such title,

14

imprisoned not less than 2 years and not more than

15

15 years, or both;

16

‘‘(3) for a felony for which the alien was sen-

17

tenced to a term of imprisonment of not less than

18

60 months, the alien shall be fined under such title,

19

imprisoned not less than 4 years and not more than

20

20 years, or both; or

21

‘‘(4) for murder, rape, kidnapping, or a felony

22

offense described in chapter 77 (relating to peonage

23

and slavery) or 113B (relating to terrorism) of such

24

title, or for 3 or more felonies of any kind, the alien

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98

1

shall be fined under such title, imprisoned not less

2

than 5 years and not more than 25 years, or both.

3

‘‘(c) REENTRY AFTER REPEATED REMOVAL.—Any

4 alien who has been denied admission, excluded, deported,

5 or removed 3 or more times and thereafter enters, at-

6 tempts to enter, crosses the border to, attempts to cross

7 the border to, or is at any time found in the United States,

8 shall be fined under title 18, United States Code, impris-

9 oned not more than 10 years, or both.

10

‘‘(d) PROOF OF PRIOR CONVICTIONS.—The prior

11 convictions described in subsection (b) are elements of the

12 crimes described, and the penalties in that subsection shall

13 apply only in cases in which the conviction or convictions

14 that form the basis for the additional penalty are—

15

‘‘(1) alleged in the indictment or information;

16

and

17

‘‘(2) proven beyond a reasonable doubt at trial

18

or admitted by the defendant.

19

‘‘(e) AFFIRMATIVE DEFENSES.—It shall be an af-

20 firmative defense to a violation of this section that—

21

‘‘(1) prior to the alleged violation, the alien had

22

sought and received the express consent of the Sec-

23

retary of Homeland Security to reapply for admis-

24

sion into the United States; or

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99

1

‘‘(2) with respect to an alien previously denied

2

admission and removed, the alien—

3

‘‘(A) was not required to obtain such ad-

4

vance consent under the Immigration and Na-

5

tionality Act or any prior Act; and

6

‘‘(B) had complied with all other laws and

7

regulations governing the alien’s admission into

8

the United States.

9

‘‘(f) LIMITATION ON COLLATERAL ATTACK ON UN-

10 DERLYING REMOVAL ORDER.—In a criminal proceeding

11 under this section, an alien may not challenge the validity

12 of any prior removal order concerning the alien.

13

‘‘(g) REENTRY OF ALIEN REMOVED PRIOR TO COM-

14 PLETION OF TERM OF IMPRISONMENT.—Any alien re-

15 moved pursuant to section 241(a)(4) who enters, attempts

16 to enter, crosses the border to, attempts to cross the bor-

17 der to, or is at any time found in, the United States shall

18 be incarcerated for the remainder of the sentence of im-

19 prisonment which was pending at the time of deportation

20 without any reduction for parole or supervised release un-

21 less the alien affirmatively demonstrates that the Sec-

22 retary of Homeland Security has expressly consented to

23 the alien’s reentry. Such alien shall be subject to such

24 other penalties relating to the reentry of removed aliens

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100

1 as may be available under this section or any other provi-

2 sion of law.

3

‘‘(h) DEFINITIONS.—For purposes of this section and

4 section 275, the following definitions shall apply:

5

‘‘(1) CROSSES THE BORDER TO THE UNITED

6

STATES.—The term ‘crosses the border’ refers to the

7

physical act of crossing the border, regardless of

8

whether the alien is free from official restraint.

9

‘‘(2) FELONY.—The term ‘felony’ means any

10

criminal offense punishable by a term of imprison-

11

ment of more than 1 year under the laws of the

12

United States, any State, or a foreign government.

13

‘‘(3) MISDEMEANOR.—The term ‘misdemeanor’

14

means any criminal offense punishable by a term of

15

imprisonment of not more than 1 year under the ap-

16

plicable laws of the United States, any State, or a

17

foreign government.

18

‘‘(4) REMOVAL.—The term ‘removal’ includes

19

any denial of admission, exclusion, deportation, or

20

removal, or any agreement by which an alien stipu-

21

lates or agrees to exclusion, deportation, or removal.

22

‘‘(5) STATE.—The term ‘State’ means a State

23

of the United States, the District of Columbia, and

24

any commonwealth, territory, or possession of the

25

United States.’’.

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101 1 SEC. 317. REFORM OF PASSPORT, VISA, AND IMMIGRATION

2

FRAUD OFFENSES.

3

Chapter 75 of title 18, United States Code, is amend-

4 ed to read as follows:

5 ‘‘CHAPTER 75—PASSPORTS AND VISAS

‘‘1541. Issuance without authority. ‘‘1542. False statement in application and use of passport. ‘‘1543. Forgery or false use of passport. ‘‘1544. Misuse of a passport. ‘‘1545. Schemes to defraud aliens. ‘‘1546. Immigration and visa fraud. ‘‘1547. Attempts and conspiracies. ‘‘1548. Alternative penalties for certain offenses. ‘‘1549. Definitions.

6 ‘‘§ 1541. Issuance without authority

7

‘‘(a) IN GENERAL.—Whoever—

8

‘‘(1) acting or claiming to act in any office or

9

capacity under the United States, or a State, with-

10

out lawful authority grants, issues, or verifies any

11

passport or other instrument in the nature of a

12

passport to or for any person; or

13

‘‘(2) being a consular officer authorized to

14

grant, issue, or verify passports, knowingly grants,

15

issues, or verifies any such passport to or for any

16

person not owing allegiance, to the United States,

17

whether a citizen or not;

18 shall be fined under this title or imprisoned not more than

19 15 years, or both.

20

‘‘(b) DEFINITION.—In this section, the term ‘State’

21 means a State of the United States, the District of Colum-

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102

1 bia, and any commonwealth, territory, or possession of the

2 United States.

3 ‘‘§ 1542. False statement in application and use of

4

passport

5

‘‘Whoever knowingly—

6

‘‘(1) makes any false statement in an applica-

7

tion for passport with intent to induce or secure the

8

issuance of a passport under the authority of the

9

United States, either for his own use or the use of

10

another, contrary to the laws regulating the issuance

11

of passports or the rules prescribed pursuant to such

12

laws; or

13

‘‘(2) uses or attempts to use, or furnishes to

14

another for use any passport the issue of which was

15

secured in any way by reason of any false statement;

16 shall be fined under this title or imprisoned not more than

17 15 years, or both.

18 ‘‘§ 1543. Forgery or false use of passport

19

‘‘Whoever—

20

‘‘(1) falsely makes, forges, counterfeits, muti-

21

lates, or alters any passport or instrument pur-

22

porting to be a passport, with intent that the same

23

may be used; or

24

‘‘(2) knowingly uses, or attempts to use, or fur-

25

nishes to another for use any such false, forged,

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103

1

counterfeited, mutilated, or altered passport or in-

2

strument purporting to be a passport, or any pass-

3

port validly issued which has become void by the oc-

4

currence of any condition therein prescribed invali-

5

dating the same;

6 shall be fined under this title or imprisoned not more than

7 15 years, or both.

8 ‘‘§ 1544. Misuse of a passport

9

‘‘Whoever knowingly—

10

‘‘(1) uses any passport issued or designed for

11

the use of another;

12

‘‘(2) uses any passport in violation of the condi-

13

tions or restrictions therein contained, or in violation

14

of the laws, regulations, or rules governing the

15

issuance and use of the passport;

16

‘‘(3) secures, possesses, uses, receives, buys,

17

sells, or distributes any passport knowing it to be

18

forged, counterfeited, altered, falsely made, procured

19

by fraud, stolen, or produced or issued without law-

20

ful authority; or

21

‘‘(4) violates the terms and conditions of any

22

safe conduct duly obtained and issued under the au-

23

thority of the United States;

24 shall be fined under this title, imprisoned not more than

25 15 years, or both.

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104 1 ‘‘§ 1545. Schemes to defraud aliens

2

‘‘Whoever inside the United States, or in or affecting

3 interstate or foreign commerce, in connection with any

4 matter that is authorized by or arises under the immigra-

5 tion laws of the United States or any matter the offender

6 claims or represents is authorized by or arises under the

7 immigration laws of the United States, knowingly executes

8 a scheme or artifice—

9

‘‘(1) to defraud any person, or

10

‘‘(2) to obtain or receive money or anything else

11

of value from any person by means of false or fraud-

12

ulent pretenses, representations, or promises;

13 shall be fined under this title, imprisoned not more than

14 15 years, or both.

15 ‘‘§ 1546. Immigration and visa fraud

16

‘‘Whoever knowingly—

17

‘‘(1) uses any immigration document issued or

18

designed for the use of another;

19

‘‘(2) forges, counterfeits, alters, or falsely

20

makes any immigration document;

21

‘‘(3) mails, prepares, presents, or signs any im-

22

migration document knowing it to contain any mate-

23

rially false statement or representation;

24

‘‘(4) secures, possesses, uses, transfers, re-

25

ceives, buys, sells, or distributes any immigration

26

document knowing it to be forged, counterfeited, al-

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105

1

tered, falsely made, stolen, procured by fraud, or

2

produced or issued without lawful authority;

3

‘‘(5) adopts or uses a false or fictitious name to

4

evade or to attempt to evade the immigration laws;

5

‘‘(6) transfers or furnishes, without lawful au-

6

thority, an immigration document to another person

7

for use by a person other than the person for whom

8

the immigration document was issued or designed;

9

or

10

‘‘(7) produces, issues, authorizes, or verifies,

11

without lawful authority, an immigration document;

12 shall be fined under this title, imprisoned not more than

13 15 years, or both.

14 ‘‘§ 1547. Attempts and conspiracies

15

‘‘Whoever attempts or conspires to violate this chap-

16 ter shall be punished in the same manner as a person who

17 completes that violation.

18 ‘‘§ 1548. Alternative penalties for certain offenses

19

‘‘(a) TERRORISM.—Whoever violates any section in

20 this chapter to facilitate an act of international terrorism

21 or domestic terrorism (as such terms are defined in section

22 2331), shall be fined under this title or imprisoned not

23 more than 25 years, or both.

24

‘‘(b) DRUG TRAFFICKING OFFENSES.—Whoever vio-

25 lates any section in this chapter to facilitate a drug traf-

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106

1 ficking crime (as defined in section 929(a)) shall be fined

2 under this title or imprisoned not more than 20 years, or

3 both.

4 ‘‘§ 1549. Definitions

5

‘‘In this chapter:

6

‘‘(1) An ‘application for a United States pass-

7

port’ includes any document, photograph, or other

8

piece of evidence attached to or submitted in support

9

of the application.

10

‘‘(2) The term ‘immigration document’ means

11

any instrument on which is recorded, by means of

12

letters, figures, or marks, matters which may be

13

used to fulfill any requirement of the Immigration

14

and Nationality Act.’’.

15 SEC. 318. FORFEITURE.

16

Section 981(a)(1) of title 18, United States Code, is

17 amended by adding at the end the following:

18

‘‘(I) Any property, real or personal, that has

19

been used to commit or facilitate the commission of

20

a violation of chapter 75, the gross proceeds of such

21

violation, and any property traceable to any such

22

property or proceeds.’’.

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107 1 SEC. 319. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE

2

ON CRIMINAL OR SECURITY GROUNDS.

3

(a) IN GENERAL.—Section 238(b) of the Immigra-

4 tion and Nationality Act (8 U.S.C. 1228(b)) is amended–

5

(1) in paragraph (1)—

6

(A) by striking ‘‘Attorney General’’ and in-

7

serting ‘‘Secretary of Homeland Security in the

8

exercise of discretion’’; and

9

(B) by striking ‘‘set forth in this sub-

10

section or’’ and inserting ‘‘set forth in this sub-

11

section, in lieu of removal proceedings under’’;

12

(2) in paragraph (3), by striking ‘‘paragraph

13

(1) until 14 calendar days’’ and inserting ‘‘para-

14

graph (1) or (3) until 7 calendar days’’;

15

(3) by striking ‘‘Attorney General’’ each place

16

it appears in paragraphs (3) and (4) and inserting

17

‘‘Secretary of Homeland Security’’;

18

(4) in paragraph (5)—

19

(A) by striking ‘‘described in this section’’

20

and inserting ‘‘described in paragraph (1) or

21

(2)’’; and

22

(B) by striking ‘‘the Attorney General may

23

grant in the Attorney General’s discretion’’ and

24

inserting ‘‘the Secretary of Homeland Security

25

or the Attorney General may grant, in the dis-

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108

1

cretion of the Secretary or Attorney General, in

2

any proceeding’’;

3

(5) by redesignating paragraphs (3), (4), and

4

(5) as paragraphs (4), (5), and (6), respectively; and

5

(6) by inserting after paragraph (2) the fol-

6

lowing new paragraph:

7

‘‘(3) The Secretary of Homeland Security in

8

the exercise of discretion may determine inadmis-

9

sibility under section 212(a)(2) (relating to criminal

10

offenses) or section 212(a)(3)(related to security

11

grounds) and issue an order of removal pursuant to

12

the procedures set forth in this subsection, in lieu of

13

removal proceedings under section 240, with respect

14

to an alien who—

15

‘‘(A) has not been admitted or paroled;

16

‘‘(B) has not been found to have a credible

17

fear of persecution pursuant to the procedures

18

set forth in section 235(b)(1)(B); and

19

‘‘(C) is not eligible for a waiver of inadmis-

20

sibility or relief from removal.’’.

21

(b) EFFECTIVE DATE.—The amendments made by

22 subsection (a) shall take effect on the date of the enact-

23 ment of this Act but shall not apply to aliens who are

24 in removal proceedings under section 240 of the Immigra-

25 tion and Nationality Act as of such date.

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109 1 SEC. 320. INCREASED PENALTIES BARRING THE ADMIS-

2

SION OF CONVICTED SEX OFFENDERS FAIL-

3

ING TO REGISTER AND REQUIRING DEPORTA-

4

TION OF SEX OFFENDERS FAILING TO REG-

5

ISTER.

6

(a) INADMISSIBILITY.—Section 212(a)(2)(A)(i) of

7 the Immigration and Nationality Act (8 U.S.C.

8 1182(a)(2)(A)(i)), as amended by section 302(a) of this

9 Act, is further amended—

10

(1) in subclause (II), by striking ‘‘or’’ at the

11

end;

12

(2) in subclause (III), by adding ‘‘or’’ at the

13

end; and

14

(3) by inserting after subclause (III) the fol-

15

lowing:

16

‘‘(IV) a violation of section 2250

17

of title 18, United States Code (relat-

18

ing to failure to register as a sex of-

19

fender),’’.

20

(b) DEPORTABILITY.—Section 237(a)(2) of such Act

21 (8 U.S.C. 1227(a)(2)), as amended by sections 302(c) and

22 311(c) of this Act, is further amended—

23

(1) in subparagraph (A), by striking clause (v);

24

and

25

(2) by adding at the end the following:

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110

1

‘‘(I) FAILURE TO REGISTER AS A SEX OF-

2

FENDER.—Any alien convicted of, or who ad-

3

mits having committed, or who admits commit-

4

ting acts which constitute the essential elements

5

of a violation of section 2250 of title 18, United

6

States Code (relating to failure to register as a

7

sex offender) is deportable.’’.

8

(c) EFFECTIVE DATE.—The amendments made by

9 this section shall take effect on the date of the enactment

10 of this Act and shall apply to acts that occur before, on,

11 or after the date of the enactment of this Act.

12 SEC. 321. PROTECTING IMMIGRANTS FROM CONVICTED

13

SEX OFFENDERS.

14

(a) IMMIGRANTS.—Section 204(a)(1) of the Immigra-

15 tion and Nationality Act (8 U.S.C. 1154(a)(1)), is amend-

16 ed—

17

(1) in subparagraph (A), by amending clause

18

(viii) to read as follows:

19

‘‘(viii) Clause (i) shall not apply to a citizen of the

20 United States who has been convicted of an offense de-

21 scribed in subparagraph (A), (I), or (K) of section

22 101(a)(43), unless the Secretary of Homeland Security,

23 in the Secretary’s sole and unreviewable discretion, deter-

24 mines that the citizen poses no risk to the alien with re-

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111

1 spect to whom a petition described in clause (i) is filed.’’;

2 and

3

(2) in subparagraph (B)(i)—

4

(A) by redesignating the second subclause

5

(I) as subclause (II); and

6

(B) by amending such subclause (II) to

7

read as follows:

8

‘‘(II) Subclause (I) shall not apply in the case of an

9 alien admitted for permanent residence who has been con-

10 victed of an offense described in subparagraph (A), (I),

11 or (K) of section 101(a)(43), unless the Secretary of

12 Homeland Security, in the Secretary’s sole and

13 unreviewable discretion, determines that the alien lawfully

14 admitted for permanent residence poses no risk to the

15 alien with respect to whom a petition described in sub-

16 clause (I) is filed.’’.

17

(b) NONIMMIGRANTS.—Section 101(a)(15)(K) of

18 such Act (8 U.S.C. 1101(a)(15)(K)), is amended by strik-

19 ing ‘‘204(a)(1)(A)(viii)(I))’’ each place such term appears

20 and inserting ‘‘204(a)(1)(A)(viii))’’.

21

(c) EFFECTIVE DATE.—The amendments made by

22 this section shall take effect on the date of the enactment

23 of this Act and shall apply to petitions filed on or after

24 such date.

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112 1 SEC. 322. CLARIFICATION TO CRIMES OF VIOLENCE AND

2

CRIMES INVOLVING MORAL TURPITUDE.

3

(a) INADMISSIBLE ALIENS.—Section 212(a)(2)(A) of

4 the Immigration and Nationality Act (8 U.S.C.

5 1182(a)(2)(A)) is amended by adding at the end the fol-

6 lowing:

7

‘‘(iii) CLARIFICATION.—If the convic-

8

tion records do not conclusively establish

9

whether a crime constitutes a crime involv-

10

ing moral turpitude, the Attorney General

11

may consider other evidence related to the

12

conviction that clearly establishes that the

13

conduct for which the alien was engaged

14

constitutes a crime involving moral turpi-

15

tude.’’.

16

(b) DEPORTABLE ALIENS.—

17

(1) GENERAL CRIMES.—Section 237(a)(2)(A)

18

of such Act (8 U.S.C. 1227(a)(2)(A)), as amended

19

by section 320(b) of this Act, is further amended by

20

inserting after clause (iv) the following:

21

‘‘(v) CRIMES INVOLVING MORAL TUR-

22

PITUDE.—If the conviction records do not

23

conclusively establish whether a crime con-

24

stitutes a crime involving moral turpitude,

25

the Attorney General may consider other

26

evidence related to the conviction that

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113

1

clearly establishes that the conduct for

2

which the alien was engaged constitutes a

3

crime involving moral turpitude.’’.

4

(2)

DOMESTIC

VIOLENCE.—Section

5

237(a)(2)(E) of such Act (8 U.S.C. 1227(a)(2)(E))

6

is amended by adding at the end the following:

7

‘‘(iii) CRIMES OF VIOLENCE.—If the

8

conviction records do not conclusively es-

9

tablish whether a crime of domestic vio-

10

lence constitutes a crime of violence (as de-

11

fined in section 16 of title 18, United

12

States Code), the Attorney General may

13

consider other evidence related to the con-

14

viction that clearly establishes that the

15

conduct for which the alien was engaged

16

constitutes a crime of violence.’’.

17

(c) EFFECTIVE DATE.—The amendments made by

18 this section shall take effect on the date of the enactment

19 of this Act and shall apply to acts that occur before, on,

20 or after the date of the enactment of this Act.

21 SEC. 323. PENALTIES FOR FAILURE TO OBEY REMOVAL OR-

22

DERS.

23

(a) IN GENERAL.—Section 243(a) of the Immigra-

24 tion and Nationality Act (8 U.S.C. 1253(a)) is amended—

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114

1

(1) in the matter preceding subparagraph (A)

2

of paragraph (1), by inserting ‘‘212(a) or’’ before

3

‘‘237(a),’’; and

4

(2) by striking paragraph (3).

5

(b) EFFECTIVE DATE.—The amendments made by

6 subsection (a) shall take effect on the date of the enact-

7 ment of this Act and shall apply to acts that are described

8 in subparagraphs (A) through (D) of section 243(a)(1) of

9 the Immigration and Nationality Act (8 U.S.C.

10 1253(a)(1)) that occur on or after the date of the enact-

11 ment of this Act.

12 SEC. 324. PARDONS.

13

(a) DEFINITION.—Section 101(a) of the Immigration

14 and Nationality Act (8 U.S.C. 1101(a)), as amended by

15 section 312(a) of this Act, is further amended by adding

16 at the end the following:

17

‘‘(54) The term ‘pardon’ means a full and uncondi-

18 tional pardon granted by the President of the United

19 States, Governor of any of the several States or constitu-

20 tionally recognized body.’’.

21

(b) DEPORTABILITY.—Section 237(a) of such Act (8

22 U.S.C. 1227(a)) is amended—

23

(1) in paragraph (2)(A), by striking clause (vi);

24

and

25

(2) by adding at the end the following:

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115

1

‘‘(8) PARDONS.—In the case of an alien who

2

has been convicted of a crime and is subject to re-

3

moval due to that conviction, if the alien, subsequent

4

to receiving the criminal conviction, is granted a

5

pardon, the alien shall not be deportable by reason

6

of that criminal conviction.’’.

7

(c) EFFECTIVE DATE.—The amendments made by

8 this section shall take effect on the date of the enactment

9 of this Act and shall apply to a pardon granted before,

10 on, or after such date.

11 SEC. 325. CONVICTIONS.

12

(a) Section 212(a)(2) of the Immigration and Nation-

13 ality Act (8 U.S.C. 1182(a)(2)) is amended by adding at

14 the end the following subparagraph:

15

‘‘(J) CONVICTIONS.—

16

‘‘(i) IN GENERAL.—For purposes of

17

determining whether an underlying crimi-

18

nal offense constitutes a ground of inad-

19

missibility under this subsection, all stat-

20

utes or common law offenses are divisible

21

so long as any of the conduct encompassed

22

by the statute constitutes an offense that

23

is a ground of inadmissibility.

24

‘‘(ii) OTHER EVIDENCE.—If the con-

25

viction records do not conclusively establish

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116

1

whether a crime constitutes a ground of in-

2

admissibility, the Attorney General or the

3

Secretary of Homeland Security may con-

4

sider other evidence related to the convic-

5

tion that clearly establishes that the con-

6

duct for which the alien was engaged con-

7

stitutes a ground of inadmissibility.’’.

8

(b) Section 237(a)(2) of the Immigration and Nation-

9 ality Act (8 U.S.C. 1227(a)(2)) is amended by adding at

10 the end the following subparagraph:

11

‘‘(G) CRIMINAL OFFENSES.—

12

‘‘(i) IN GENERAL.—For purposes of

13

determining whether an underlying crimi-

14

nal offense constitutes a ground of deport-

15

ability under this subsection, all statutes or

16

common law offenses are divisible so long

17

as any of the conduct encompassed by the

18

statute constitutes an offense that is a

19

ground of deportability.

20

‘‘(ii) OTHER EVIDENCE.—If the con-

21

viction records do not conclusively establish

22

whether a crime constitutes a ground of

23

deportability, the Attorney General or the

24

Secretary of Homeland Security may con-

25

sider other evidence related to the convic-

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117

1

tion that clearly establishes that the con-

2

duct for which the alien was engaged con-

3

stitutes a ground of deportability.’’.

4

TITLE IV—VISA SECURITY

5 SEC. 401. CANCELLATION OF ADDITIONAL VISAS.

6

(a) IN GENERAL.—Section 222(g) of the Immigra-

7 tion and Nationality Act (8 U.S.C. 1202(g)) is amended—

8

(1) in paragraph (1)—

9

(A) by striking ‘‘Attorney General’’ and in-

10

serting ‘‘Secretary’’; and

11

(B) by inserting ‘‘and any other non-

12

immigrant visa issued by the United States that

13

is in the possession of the alien’’ after ‘‘such

14

visa’’; and

15

(2) in paragraph (2)(A), by striking ‘‘(other

16

than the visa described in paragraph (1)) issued in

17

a consular office located in the country of the alien’s

18

nationality’’ and inserting ‘‘(other than a visa de-

19

scribed in paragraph (1)) issued in a consular office

20

located in the country of the alien’s nationality or

21

foreign residence’’.

22

(b) EFFECTIVE DATE.—The amendment made by

23 subsection (a) shall take effect on the date of the enact-

24 ment of this Act and shall apply to a visa issued before,

25 on, or after such date.

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118 1 SEC. 402. VISA INFORMATION SHARING.

2

(a) IN GENERAL.—Section 222(f) of the Immigration

3 and Nationality Act (8 U.S.C. 1202(f)(2)) is amended—

4

(1) by striking ‘‘issuance or refusal’’ and insert-

5

ing ‘‘issuance, refusal, or revocation’’;

6

(2) in paragraph (2), in the matter preceding

7

subparagraph (A), by striking ‘‘and on the basis of

8

reciprocity’’;

9

(3) in paragraph (2)(A)—

10

(A) by inserting ‘‘(i)’’ after ‘‘for the pur-

11

pose of’’; and

12

(B) by striking ‘‘illicit weapons; or’’ and

13

inserting ‘‘illicit weapons, or (ii) determining a

14

person’s deportability or eligibility for a visa,

15

admission, or other immigration benefit;’’;

16

(4) in paragraph (2)(B)—

17

(A) by striking ‘‘for the purposes’’ and in-

18

serting ‘‘for one of the purposes’’; and

19

(B) by striking ‘‘or to deny visas to per-

20

sons who would be inadmissible to the United

21

States.’’ and inserting ‘‘; or’’; and

22

(5) in paragraph (2), by adding at the end the

23

following:

24

‘‘(C) with regard to any or all aliens in the

25

database specified data elements from each

26

record, if the Secretary of State determines that

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1

it is in the national interest to provide such in-

2

formation to a foreign government.’’.

3

(b) EFFECTIVE DATE.—The amendments made by

4 subsection (a) shall take effect 60 days after the date of

5 the enactment of the Act.

6 SEC. 403. RESTRICTING WAIVER OF VISA INTERVIEWS.

7

Section 222(h) of the Immigration and Nationality

8 Act (8 U.S.C. 1202(h)(1)(B)) is amended—

9

(1) in paragraph (1)(C), by inserting ‘‘, in con-

10

sultation with the Secretary of Homeland Security,’’

11

after ‘‘if the Secretary’’;

12

(2) in paragraph (1)(C)(i), by inserting ‘‘,

13

where such national interest shall not include facili-

14

tation of travel of foreign nationals to the United

15

States, reduction of visa application processing

16

times, or the allocation of consular resources’’ before

17

the semicolon at the end; and

18

(3) in paragraph (2)—

19

(A) by striking ‘‘or’’ at the end of subpara-

20

graph (E);

21

(B) by striking the period at the end of

22

subparagraph (F) and inserting ‘‘; or’’; and

23

(C) by adding at the end the following:

24

‘‘(G) is an individual—

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1

‘‘(i) determined to be in a class of

2

aliens determined by the Secretary of

3

Homeland Security to be threats to na-

4

tional security;

5

‘‘(ii) identified by the Secretary of

6

Homeland Security as a person of concern;

7

or

8

‘‘(iii) applying for a visa in a visa cat-

9

egory with respect to which the Secretary

10

of Homeland Security has determined that

11

a waiver of the visa interview would create

12

a high risk of degradation of visa program

13

integrity.’’.

14 SEC. 404. AUTHORIZING THE DEPARTMENT OF STATE TO

15

NOT INTERVIEW CERTAIN INELIGIBLE VISA

16

APPLICANTS.

17

(a) IN GENERAL.—Section 222(h)(1) of the Immi-

18 gration and Nationality Act (8 U.S.C. 1202(h)(1)) is

19 amended by inserting ‘‘the alien is determined by the Sec-

20 retary of State to be ineligible for a visa based upon review

21 of the application or’’ after ‘‘unless’’.

22

(b) GUIDANCE.—Not later than 90 days after the

23 date of the enactment of this Act, the Secretary of State

24 shall issue guidance to consular officers on the standards

25 and processes for implementing the authority to deny visa

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1 applications without interview in cases where the alien is

2 determined by the Secretary of State to be ineligible for

3 a visa based upon review of the application.

4

(c) REPORTS.—Not less frequently than once each

5 quarter, the Secretary of State shall submit to the Con-

6 gress a report on the denial of visa applications without

7 interview, including—

8

(1) the number of such denials; and

9

(2) a post-by-post breakdown of such denials.

10 SEC. 405. VISA REFUSAL AND REVOCATION.

11

(a) AUTHORITY OF THE SECRETARY OF HOMELAND

12 SECURITY AND THE SECRETARY OF STATE.—

13

(1) IN GENERAL.—Section 428 of the Home-

14

land Security Act of 2002 (6 U.S.C. 236) is amend-

15

ed by striking subsections (b) and (c) and inserting

16

the following:

17

‘‘(b) AUTHORITY OF THE SECRETARY OF HOMELAND

18 SECURITY.—

19

‘‘(1) IN GENERAL.—Notwithstanding section

20

104(a) of the Immigration and Nationality Act (8

21

U.S.C. 1104(a)) or any other provision of law, and

22

except as provided in subsection (c) and except for

23

the authority of the Secretary of State under sub-

24

paragraphs (A) and (G) of section 101(a)(15) of the

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1

Immigration and Nationality Act (8 U.S.C.

2

1101(a)(15)), the Secretary—

3

‘‘(A) shall have exclusive authority to issue

4

regulations, establish policy, and administer and

5

enforce the provisions of the Immigration and

6

Nationality Act (8 U.S.C. 1101 et seq.) and all

7

other immigration or nationality laws relating

8

to the functions of consular officers of the

9

United States in connection with the granting

10

and refusal of a visa; and

11

‘‘(B) may refuse or revoke any visa to any

12

alien or class of aliens if the Secretary, or des-

13

ignee, determines that such refusal or revoca-

14

tion is necessary or advisable in the security or

15

foreign policy interests of the United States.

16

‘‘(2) EFFECT OF REVOCATION.—The revocation

17

of any visa under paragraph (1)(B)—

18

‘‘(A) shall take effect immediately; and

19

‘‘(B) shall automatically cancel any other

20

valid visa that is in the alien’s possession.

21

‘‘(3) JUDICIAL REVIEW.—Notwithstanding any

22

other provision of law, including section 2241 of title

23

28, United States Code, or any other habeas corpus

24

provision, and sections 1361 and 1651 of such title,

25

no court shall have jurisdiction to review a decision

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1

by the Secretary of Homeland Security to refuse or

2

revoke a visa, and no court shall have jurisdiction to

3

hear any claim arising from, or any challenge to,

4

such a refusal or revocation.

5

‘‘(c) AUTHORITY OF THE SECRETARY OF STATE.—

6

‘‘(1) IN GENERAL.—The Secretary of State may

7

direct a consular officer to refuse a visa requested

8

by an alien if the Secretary of State determines such

9

refusal to be necessary or advisable in the security

10

or foreign policy interests of the United States.

11

‘‘(2) LIMITATION.—No decision by the Sec-

12

retary of State to approve a visa may override a de-

13

cision by the Secretary of Homeland Security under

14

subsection (b).’’.

15

(2) CONFORMING AMENDMENT.—Section

16

237(a)(1)(B) of the Immigration and Nationality

17

Act (8 U.S.C. 1227(a)(1)(B)) is amended by strik-

18

ing ‘‘under section 221(i)’’.

19

(3) EFFECTIVE DATE.—The amendment made

20

by paragraph (1) shall take effect on the date of the

21

enactment of this Act and shall apply to visa refus-

22

als and revocations occurring before, on, or after

23

such date.

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1

(b) TECHNICAL CORRECTIONS TO THE HOMELAND

2 SECURITY ACT.—Section 428(a) of the Homeland Secu-

3 rity Act of 2002 (6 U.S.C. 236(a)) is amended by—

4

(1) striking ‘‘subsection’’ and inserting ‘‘sec-

5

tion’’; and

6

(2) striking ‘‘consular office’’ and inserting

7

‘‘consular officer’’.

8 SEC. 406. FUNDING FOR THE VISA SECURITY PROGRAM.

9

(a) IN GENERAL.—The Department of State and Re-

10 lated Agency Appropriations Act, 2005 (title IV of division

11 B of Public Law 108–447) is amended, in the fourth para-

12 graph under the heading ‘‘Diplomatic and Consular Pro-

13 grams’’, by striking ‘‘Beginning’’ and all that follows

14 through the period at the end and inserting the following:

15 ‘‘Beginning in fiscal year 2005 and thereafter, the Sec-

16 retary of State is authorized to charge surcharges related

17 to consular services in support of enhanced border security

18 that are in addition to the immigrant visa fees in effect

19 on January 1, 2004: Provided, That funds collected pursu-

20 ant to this authority shall be credited to the appropriation

21 for U.S. Immigration and Customs Enforcement for the

22 fiscal year in which the fees were collected, and shall be

23 available until expended for the funding of the Visa Secu-

24 rity Program established by the Secretary of Homeland

25 Security under section 428(e) of the Homeland Security

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1 Act of 2002 (Public Law 107–296): Provided further, That

2 such surcharges shall be 10 percent of the fee assessed

3 on immigrant visa applications.’’.

4

(b) REPAYMENT OF APPROPRIATED FUNDS.—Twen-

5 ty percent of the funds collected each fiscal year under

6 the heading ‘‘Diplomatic and Consular Programs’’ in the

7 Department of State and Related Agency Appropriations

8 Act, 2005 (title IV of division B of Public Law 108–447),

9 as amended by subsection (a), shall be deposited into the

10 general fund of the Treasury as repayment of funds ap-

11 propriated pursuant to section 407(c) of this Act until the

12 entire appropriated sum has been repaid.

13 SEC. 407. EXPEDITIOUS EXPANSION OF VISA SECURITY

14

PROGRAM TO HIGH-RISK POSTS.

15

(a) IN GENERAL.—Section 428(i) of the Homeland

16 Security Act of 2002 (6 U.S.C. 236(i)) is amended to read

17 as follows:

18

‘‘(i) VISA ISSUANCE AT DESIGNATED HIGH-RISK

19 POSTS.—Notwithstanding any other provision of law, the

20 Secretary of Homeland Security shall conduct an on-site

21 review of all visa applications and supporting documenta-

22 tion before adjudication at the top 30 visa-issuing posts

23 designated jointly by the Secretaries of State and Home-

24 land Security as high-risk posts.’’.

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1

(b) ASSIGNMENT OF PERSONNEL.—Not later than

2 one year after the date of enactment of this section, the

3 Secretary of Homeland Security shall assign personnel to

4 the visa-issuing posts referenced in section 428(i) of the

5 Homeland Security Act of 2002 (6 U.S.C. 236(i)), as

6 amended by this section, and communicate such assign-

7 ments to the Secretary of State.

8

(c) APPROPRIATIONS.—There is authorized to be ap-

9 propriated $60,000,000 for each of the fiscal years 2014

10 and 2015, which shall be used to expedite the implementa-

11 tion of section 428(i) of the Homeland Security Act, as

12 amended by this section.

13 SEC. 408. EXPEDITED CLEARANCE AND PLACEMENT OF DE-

14

PARTMENT OF HOMELAND SECURITY PER-

15

SONNEL AT OVERSEAS EMBASSIES AND CON-

16

SULAR POSTS.

17

Section 428 of the Homeland Security Act of 2002

18 (6 U.S.C. 236) is amended by adding at the end the fol-

19 lowing:

20

‘‘(j) EXPEDITED CLEARANCE AND PLACEMENT OF

21 DEPARTMENT OF HOMELAND SECURITY PERSONNEL AT

22 OVERSEAS EMBASSIES AND CONSULAR POSTS.—Notwith-

23 standing any other provision of law, and the processes set

24 forth in National Security Defense Directive 38 (dated

25 June 2, 1982) or any successor Directive, the Chief of

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1 Mission of a post to which the Secretary of Homeland Se-

2 curity has assigned personnel under subsection (e) or (i)

3 shall ensure, not later than one year after the date on

4 which the Secretary of Homeland Security communicates

5 such assignment to the Secretary of State, that such per-

6 sonnel have been stationed and accommodated at post and

7 are able to carry out their duties.’’.

8 SEC. 409. ACCREDITATION REQUIREMENTS.

9

(a) COLLEGES, UNIVERSITIES, AND LANGUAGE

10 TRAINING PROGRAMS.—Section 101(a) of the Immigra-

11 tion and Nationality Act (8 U.S.C. 1101(a)) is amended—

12

(1) in paragraph (15)(F)(i)—

13

(A) by striking ‘‘section 214(l) at an estab-

14

lished college, university, seminary, conserv-

15

atory, academic high school, elementary school,

16

or other academic institution or in an accred-

17

ited language training program in the United

18

States’’ and inserting ‘‘section 214(m) at an ac-

19

credited college, university, or language training

20

program, or at an established seminary, con-

21

servatory, academic high school, elementary

22

school, or other academic institution in the

23

United States’’;

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1

(B) by striking ‘‘Attorney General’’ each

2

place such term appears and inserting ‘‘Sec-

3

retary of Homeland Security’’; and

4

(C) by striking ‘‘and if any such institution

5

of learning or place of study fails to make re-

6

ports promptly the approval shall be with-

7

drawn,’’ and inserting ‘‘and if any such institu-

8

tion of learning of place of study fails to make

9

reports promptly or fails to comply with any ac-

10

creditation requirement (including deadlines for

11

submitting accreditation applications or obtain-

12

ing accreditation) the approval shall be with-

13

drawn,’’; and

14

(2) by amending paragraph (52) to read as fol-

15

lows:

16

‘‘(52) Except as provided in section 214(m)(4), the

17 term ‘accredited college, university, or language training

18 program’ means a college, university, or language training

19 program that is accredited by an accrediting agency recog-

20 nized by the Secretary of Education.’’.

21

(b) OTHER ACADEMIC INSTITUTIONS.—Section

22 214(m) of the Immigration and Nationality Act (8 U.S.C.

23 1184(m)) is amended by adding at the end the following:

24

‘‘(3) The Secretary of Homeland Security shall re-

25 quire accreditation of an academic institution (except for

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1 seminaries or other religious institutions) for purposes of

2 section 101(a)(15)(F) if—

3

‘‘(A) that institution is not already required to

4

be accredited under section 101(a)(15)(F)(i); and

5

‘‘(B) an appropriate accrediting agency recog-

6

nized by the Secretary of Education is able to pro-

7

vide such accreditation.

8

‘‘(4) The Secretary of Homeland Security, in the Sec-

9 retary’s discretion, may waive the accreditation require-

10 ment in paragraph (3) or section 101(a)(15)(F)(i) with

11 respect to an institution if such institution—

12

‘‘(A) is otherwise in compliance with the re-

13

quirements of section 101(a)(15)(F)(i); and

14

‘‘(B) has been a candidate for accreditation for

15

at least 1 year and continues to progress toward ac-

16

creditation by an accrediting agency recognized by

17

the Secretary of Education.’’.

18

(c) EFFECTIVE DATE.—

19

(1) IN GENERAL.—Except as provided in para-

20

graph (2), the amendments made by this section

21

shall—

22

(A) take effect on the date that is 180

23

days after the date of enactment of this Act;

24

and

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1

(B) apply with respect to applications for

2

nonimmigrant visas that are filed on or after

3

the effective date described in subparagraph

4

(A).

5

(2) TEMPORARY EXCEPTION.—During the 3-

6

year period beginning on the effective date described

7

in paragraph (1)(A), an institution that is newly re-

8

quired to be accredited under this section may con-

9

tinue to participate in the Student and Exchange

10

Visitor Program notwithstanding the institution’s

11

lack of accreditation if the institution—

12

(A) was certified under the Student and

13

Exchange Visitor Program on such date;

14

(B) submitted an application for accredita-

15

tion to an accrediting agency recognized by the

16

Secretary of Education during the 6-month pe-

17

riod ending on such date; and

18

(C) continues to progress toward accredita-

19

tion by such accrediting agency.

20 SEC. 410. VISA FRAUD.

21

(a) TEMPORARY SUSPENSION OF SEVIS ACCESS.—

22 Section 641(d) of the Illegal Immigration Reform and Im-

23 migrant Responsibility Act of 1996 (8 U.S.C. 1372(d)) is

24 amended—

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1

(1) in paragraph (1)(A), by striking ‘‘institu-

2

tion,,’’ and inserting ‘‘institution,’’; and

3

(2) by adding at the end the following:

4

‘‘(3) EFFECT OF REASONABLE SUSPICION OF

5

FRAUD.—If the Secretary of Homeland Security has

6

reasonable suspicion that an owner of, or a des-

7

ignated school official at, an approved institution of

8

higher education, an other approved educational in-

9

stitution, or a designated exchange visitor program

10

has committed fraud or attempted to commit fraud

11

relating to any aspect of the Student and Exchange

12

Visitor Program, the Secretary may immediately

13

suspend, without notice, such official’s or such

14

school’s access to the Student and Exchange Visitor

15

Information System (SEVIS), including the ability

16

to issue Form I–20s, pending a final determination

17

by the Secretary with respect to the institution’s cer-

18

tification under the Student and Exchange Visitor

19

Program.’’.

20

(b) EFFECT OF CONVICTION FOR VISA FRAUD.—

21 Such section 641(d), as amended by subsection (a)(2), is

22 further amended by adding at the end the following:

23

‘‘(4) PERMANENT DISQUALIFICATION FOR

24

FRAUD.—A designated school official at, or an owner

25

of, an approved institution of higher education, an

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132

1

other approved educational institution, or a des-

2

ignated exchange visitor program who is convicted

3

for fraud relating to any aspect of the Student and

4

Exchange Visitor Program shall be permanently dis-

5

qualified from filing future petitions and from hav-

6

ing an ownership interest or a management role, in-

7

cluding serving as a principal, owner, officer, board

8

member, general partner, designated school official,

9

or any other position of substantive authority for the

10

operations or management of the institution, in any

11

United States educational institution that enrolls

12

nonimmigrant alien students described in subpara-

13

graph (F) or (M) of section 101(a)(15) the Immi-

14

gration and Nationality Act (8 U.S.C.

15

1101(a)(15)).’’.

16 SEC. 411. BACKGROUND CHECKS.

17

(a) IN GENERAL.—Section 641(d) of the Illegal Im-

18 migration Reform and Immigrant Responsibility Act of

19 1996 (8 U.S.C. 1372(d)), as amended by section 411(b)

20 of this Act, is further amended by adding at the end the

21 following:

22

‘‘(5) BACKGROUND CHECK REQUIREMENT.—

23

‘‘(A) IN GENERAL.—An individual may not

24

serve as a designated school official or be grant-

25

ed access to SEVIS unless the individual is a

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1

national of the United States or an alien law-

2

fully admitted for permanent residence and dur-

3

ing the most recent 3-year period—

4

‘‘(i) the Secretary of Homeland Secu-

5

rity has—

6

‘‘(I) conducted a thorough back-

7

ground check on the individual, in-

8

cluding a review of the individual’s

9

criminal and sex offender history and

10

the verification of the individual’s im-

11

migration status; and

12

‘‘(II) determined that the indi-

13

vidual has not been convicted of any

14

violation of United States immigration

15

law and is not a risk to national secu-

16

rity of the United States; and

17

‘‘(ii) the individual has successfully

18

completed an on-line training course on

19

SEVP and SEVIS, which has been devel-

20

oped by the Secretary.

21

‘‘(B) INTERIM DESIGNATED SCHOOL OFFI-

22

CIAL.—

23

‘‘(i) IN GENERAL.—An individual may

24

serve as an interim designated school offi-

25

cial during the period that the Secretary is

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1

conducting the background check required

2

by subparagraph (A)(i)(I).

3

‘‘(ii) REVIEWS BY THE SECRETARY.—

4

If an individual serving as an interim des-

5

ignated school official under clause (i) does

6

not successfully complete the background

7

check required by subparagraph (A)(i)(I),

8

the Secretary shall review each Form I–20

9

issued by such interim designated school

10

official.

11

‘‘(6) FEE.—The Secretary is authorized to col-

12

lect a fee from an approved school for each back-

13

ground check conducted under paragraph (6)(A)(i).

14

The amount of such fee shall be equal to the average

15

amount expended by the Secretary to conduct such

16

background checks.’’.

17

(b) EFFECTIVE DATE.—The amendment made by

18 subsection (a) shall take effect on the date that is 1 year

19 after the date of the enactment of this Act.

20 SEC. 412. NUMBER OF DESIGNATED SCHOOL OFFICIALS.

21

Section 641(d) of the Illegal Immigration Reform and

22 Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)),

23 as amended by section 412(a) of this Act, is further

24 amended by adding at the end the following:

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1

‘‘(7) NUMBER OF DESIGNATED SCHOOL OFFI-

2

CIALS.—School officials may nominate as many Des-

3

ignated School Officials (DSOs) in addition to the

4

school’s Principal Designated School Official

5

(PDSO) as they determine necessary to adequately

6

provide recommendations to students enrolled at the

7

school regarding maintenance of nonimmigrant sta-

8

tus under subparagraph (F) or (M) of section

9

101(a)(15) and to support timely and complete rec-

10

ordkeeping and reporting to the Secretary of Home-

11

land Security, as required by this section, except

12

that a school may not have less than one DSO per

13

every 200 students who have nonimmigrant status

14

pursuant to subparagraph (F), (J), or (M) of such

15

section. School officials shall not permit a DSO or

16

PDSO nominee access to SEVIS until the Secretary

17

approves the nomination.’’.

18 SEC. 413. REPORTING REQUIREMENT.

19

Section 442(a) of the Homeland Security Act of 2002

20 (6 U.S.C. 252(a)) is amended—

21

(1) by redesignating paragraph (5) as para-

22

graph (6); and

23

(2) by inserting after paragraph (4) the fol-

24

lowing:

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1

‘‘(5) STUDENT AND EXCHANGE VISITOR PRO-

2

GRAM.—In administering the program under para-

3

graph (4), the Secretary shall, not later than one

4

year after the date of the enactment of this para-

5

graph, prescribe regulations to require an institution

6

or exchange visitor program sponsor participating in

7

the Student Exchange Visitor Program to ensure

8

that each student or exchange visitor who has non-

9

immigrant status pursuant to subparagraph (F),

10

(J), or (M) of section 101(a)(15) of the Immigration

11

and Nationality Act (8 U.S.C. 1101(a)(15)) enrolled

12

at the institution or attending the exchange visitor

13

program is reported to the Department within 10

14

days of—

15

‘‘(A) transferring to another institution or

16

program;

17

‘‘(B) changing academic majors; or

18

‘‘(C) any other changes to information re-

19

quired to be maintained in the system described

20

in paragraph (4).’’.

21 SEC. 414. FLIGHT SCHOOLS NOT CERTIFIED BY FAA.

22

(a) IN GENERAL.—Except as provided in subsection

23 (b), the Secretary of Homeland Security shall prohibit any

24 flight school in the United States from accessing SEVIS

25 or issuing a Form I–20 to an alien seeking a student visa

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1 pursuant to subparagraph (F)(i) or (M)(i) of section

2 101(a)(15) of the Immigration and Nationality Act (8

3 U.S.C. 1101(a)(15)) if the flight school has not been cer-

4 tified to the satisfaction of the Secretary and by the Fed-

5 eral Aviation Administration pursuant to part 141 or part

6 142 of title 14, Code of Federal Regulations (or similar

7 successor regulations).

8

(b) TEMPORARY EXCEPTION.—During the 5-year pe-

9 riod beginning on the date of the enactment of this Act,

10 the Secretary may waive the requirement under subsection

11 (a) that a flight school be certified by the Federal Aviation

12 Administration if such flight school—

13

(1) was certified under the Student and Ex-

14

change Visitor Program on the date of the enact-

15

ment of this Act;

16

(2) submitted an application for certification

17

with the Federal Aviation Administration during the

18

1-year period beginning on such date; and

19

(3) continues to progress toward certification by

20

the Federal Aviation Administration.

21 SEC. 415. REVOCATION OF ACCREDITATION.

22

At the time an accrediting agency or association is

23 required to notify the Secretary of Education and the ap-

24 propriate State licensing or authorizing agency of the final

25 denial, withdrawal, suspension, or termination of accredi-

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138

1 tation of an institution pursuant to section 496 of the

2 Higher Education Act of 1965 (20 U.S.C. 1099b), such

3 accrediting agency or association shall notify the Secretary

4 of Homeland Security of such determination and the Sec-

5 retary of Homeland Security shall immediately withdraw

6 the school from the SEVP and prohibit the school from

7 accessing SEVIS.

8 SEC. 416. REPORT ON RISK ASSESSMENT.

9

Not later than 180 days after the date of the enact-

10 ment of this Act, the Secretary of Homeland Security shall

11 submit to the Committee on the Judiciary of the Senate

12 and the Committee on the Judiciary of the House of Rep-

13 resentatives a report that contains the risk assessment

14 strategy that will be employed by the Secretary to identify,

15 investigate, and take appropriate action against schools

16 and school officials that are facilitating the issuance of

17 Form I–20 and the maintenance of student visa status

18 in violation of the immigration laws of the United States.

19 SEC. 417. IMPLEMENTATION OF GAO RECOMMENDATIONS.

20

Not later than 180 days after the date of the enact-

21 ment of this act, the Secretary of Homeland Security shall

22 submit to the Committee on the Judiciary of the Senate

23 and the Committee on the Judiciary of the House of Rep-

24 resentatives a report that describes—

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1

(1) the process in place to identify and assess

2

risks in the SEVP;

3

(2) a risk assessment process to allocate

4

SEVP’s resources based on risk;

5

(3) the procedures in place for consistently en-

6

suring a school’s eligibility, including consistently

7

verifying in lieu of letters;

8

(4) how SEVP identified and addressed missing

9

school case files;

10

(5) a plan to develop and implement a process

11

to monitor State licensing and accreditation status

12

of all SEVP-certified schools;

13

(6) whether all flight schools that have not been

14

certified to the satisfaction of the Secretary and by

15

the Federal Aviation Administration have been re-

16

moved from the program and have been restricted

17

from accessing SEVIS;

18

(7) the standard operating procedures that gov-

19

ern coordination among SEVP, Counterterrorism

20

and Criminal Exploitation Unit, and U.S. Immigra-

21

tion and Customs Enforcement field offices; and

22

(8) the established criteria for referring cases of

23

a potentially criminal nature from SEVP to the

24

counterterrorism and intelligence community.

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140 1 SEC. 418. IMPLEMENTATION OF SEVIS II.

2

Not later than 2 years after the date of the enact-

3 ment of this Act, the Secretary of Homeland Security shall

4 complete the deployment of both phases of the 2nd genera-

5 tion Student and Exchange Visitor Information System

6 (commonly known as ‘‘SEVIS II’’).

7 SEC. 419. DEFINITIONS.

8

(a) DEFINITIONS.—For purposes of this title:

9

(1) SEVIS.—The term ‘‘SEVIS’’ means the

10

Student and Exchange Visitor Information System

11

of the Department of Homeland Security.

12

(2) SEVP.—The term ‘‘SEVP’’ means the Stu-

13

dent and Exchange Visitor Program of the Depart-

14

ment of Homeland Security.

15 TITLE V—AID TO U.S. IMMIGRA-

16 TION AND CUSTOMS EN-

17 FORCEMENT OFFICERS

18 SEC. 501. ICE IMMIGRATION ENFORCEMENT AGENTS.

19

(a) IN GENERAL.—The Secretary of Homeland Secu-

20 rity shall authorize all immigration enforcement agents

21 and deportation officers of the Department of Homeland

22 Security who have successfully completed basic immigra-

23 tion law enforcement training to exercise the powers con-

24 ferred by—

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141

1

(1) section 287(a)(5)(A) of the Immigration

2

and Nationality Act to arrest for any offense against

3

the United States;

4

(2) section 287(a)(5)(B) of such Act to arrest

5

for any felony;

6

(3) section 274(a) of such Act to arrest for

7

bringing in, transporting, or harboring certain

8

aliens, or inducing them to enter;

9

(4) section 287(a) of such Act to execute war-

10

rants of arrest for administrative immigration viola-

11

tions issued under section 236 of the Act or to exe-

12

cute warrants of criminal arrest issued under the

13

authority of the United States; and

14

(5) section 287(a) of such Act to carry fire-

15

arms, provided that they are individually qualified by

16

training and experience to handle and safely operate

17

the firearms they are permitted to carry, maintain

18

proficiency in the use of such firearms, and adhere

19

to the provisions of the enforcement standard gov-

20

erning the use of force.

21

(b) ARREST POWERS.—Section 287(a)(2) of the Im-

22 migration and Nationality Act (8 U.S.C. 1357(a)(2)) is

23 amended by striking ‘‘regulation and is likely to escape

24 before a warrant can be obtained for his arrest,’’ and in-

25 serting ‘‘regulation,’’.

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142

1

(c) PAY.—Immigration enforcement agents shall be

2 paid on the same scale as Immigration and Customs En-

3 forcement deportation officers and shall receive the same

4 benefits.

5 SEC. 502. ICE DETENTION ENFORCEMENT OFFICERS.

6

(a) AUTHORIZATION.—The Secretary of Homeland

7 Security is authorized to hire 2,500 Immigration and Cus-

8 toms Enforcement detention enforcement officers.

9

(b) DUTIES.—Immigration and Customs Enforce-

10 ment detention enforcement officers who have successfully

11 completed detention enforcement officers’ basic training

12 shall be responsible for—

13

(1) taking and maintaining custody of any per-

14

son who has been arrested by an immigration offi-

15

cer;

16

(2) transporting and guarding immigration de-

17

tainees;

18

(3) securing Department of Homeland Security

19

detention facilities; and

20

(4) assisting in the processing of detainees.

21 SEC. 503. ENSURING THE SAFETY OF ICE OFFICERS AND

22

AGENTS.

23

(a) BODY ARMOR.—The Secretary of Homeland Se-

24 curity shall ensure that every Immigration and Customs

25 Enforcement deportation officer and immigration enforce-

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143

1 ment agent on duty is issued high-quality body armor that

2 is appropriate for the climate and risks faced by the agent.

3 Enough body armor must be purchased to cover every

4 agent in the field.

5

(b) WEAPONS.—Such Secretary shall ensure that Im-

6 migration and Customs Enforcement deportation officers

7 and immigration enforcement agents are equipped with

8 weapons that are reliable and effective to protect them-

9 selves, their fellow agents, and innocent third parties from

10 the threats posed by armed criminals. Such weapons shall

11 include, at a minimum, standard-issue handguns, M–4 (or

12 equivalent) rifles, and Tasers.

13

(c) EFFECTIVE DATE.—This section shall take effect

14 90 days after the date of the enactment of this Act.

15 SEC. 504. ICE ADVISORY COUNCIL.

16

(a) ESTABLISHMENT.—An ICE Advisory Council

17 shall be established not later than 3 months after the date

18 of the enactment of this Act.

19

(b) MEMBERSHIP.—The ICE Advisor Council shall

20 be comprised of 7 members.

21

(c) APPOINTMENT.—Members shall to be appointed

22 in the following manner:

23

(1) One member shall be appointed by the

24

President.

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1

(2) One member shall be appointed by the

2

Chairman of the Judiciary Committee of the House

3

of Representatives.

4

(3) One member shall be appointed by the

5

Chairman of the Judiciary Committee of the Senate.

6

(4) One member shall be appointed by the

7

Local 511, the ICE prosecutor’s union.

8

(5) Three members shall be appointed by the

9

National Immigration and Customs Enforcement

10

Council.

11

(d) TERM.—Members shall serve renewable, 2-year

12 terms.

13

(e) VOLUNTARY.—Membership shall be voluntary and

14 non-remunerated, except that members will receive reim-

15 bursement from the Secretary of Homeland Security for

16 travel and other related expenses.

17

(f) RETALIATION PROTECTION.—Members who are

18 employed by the Secretary of Homeland Security shall be

19 protected from retaliation by their supervisors, managers,

20 and other Department of Homeland Security employees

21 for their participation on the Council.

22

(g) PURPOSE.—The purpose of the Council is to ad-

23 vise the Congress and the Secretary of Homeland Security

24 on issues including the following:

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1

(1) The current status of immigration enforce-

2

ment efforts, including prosecutions and removals,

3

the effectiveness of such efforts, and how enforce-

4

ment could be improved.

5

(2) The effectiveness of cooperative efforts be-

6

tween the Secretary of Homeland Security and other

7

law enforcement agencies, including additional types

8

of enforcement activities that the Secretary should

9

be engaged in, such as State and local criminal task

10

forces.

11

(3) Personnel, equipment, and other resource

12

needs of field personnel.

13

(4) Improvements that should be made to the

14

organizational structure of the Department of

15

Homeland Security, including whether the position

16

of immigration enforcement agent should be merged

17

into the deportation officer position.

18

(5) The effectiveness of specific enforcement

19

policies and regulations promulgated by the Sec-

20

retary of Homeland Security, and whether other en-

21

forcement priorities should be considered.

22

(h) REPORTS.—The Council shall provide quarterly

23 reports to the Chairmen and Ranking Members of the Ju-

24 diciary Committees of the Senate and the House of Rep-

25 resentatives and to the Secretary of Homeland Security.

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146

1 The Council members shall meet directly with the Chair-

2 men and Ranking Members (or their designated represent-

3 atives) and with the Secretary to discuss their reports

4 every 6 months.

5 SEC. 505. PILOT PROGRAM FOR ELECTRONIC FIELD PROC-

6

ESSING.

7

(a) IN GENERAL.—The Secretary of Homeland Secu-

8 rity shall establish a pilot program in at least five of the

9 ten Immigration and Customs Enforcement field offices

10 with the largest removal caseloads to allow Immigration

11 and Customs deportation officers and immigration en-

12 forcement agents to—

13

(1) electronically process and serve charging

14

documents, including Notices to Appear, while in the

15

field; and

16

(2) electronically process and place detainers

17

while in the field.

18

(b) DUTIES.—The pilot program described in sub-

19 section (a) shall be designed to allow deportation officers

20 and immigration enforcement agents to use handheld or

21 vehicle-mounted computers to—

22

(1) enter any required data, including personal

23

information about the alien subject and the reason

24

for issuing the document;

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147

1

(2) apply the electronic signature of the issuing

2

officer or agent;

3

(3) set the date the alien is required to appear

4

before an immigration judge, in the case of Notices

5

to Appear;

6

(4) print any documents the alien subject may

7

be required to sign, along with additional copies of

8

documents to be served on the alien; and

9

(5) interface with the ENFORCE database so

10

that all data is stored and retrievable.

11

(c) CONSTRUCTION.—The pilot program described in

12 subsection (a) shall be designed to replace, to the extent

13 possible, the current paperwork and data-entry process

14 used for issuing such charging documents and detainers.

15

(d) DEADLINE.—The Secretary shall initiate the pilot

16 program described in subsection (a) within 6 months of

17 the date of enactment of this Act.

18

(e) REPORT.—The Government Accountability Office

19 shall report to the Judiciary Committee of the Senate and

20 the House of Representatives no later than 18 months

21 after the date of enactment of this Act on the effectiveness

22 of the pilot program and provide recommendations for im-

23 proving it.

24

(f) ADVISORY COUNCIL.—The ICE Advisory Council

25 established by section 504 shall include recommendations

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148

1 on how the pilot program should work in the first quar-

2 terly report of the Council, and shall include assessments

3 of the program and recommendations for improvement in

4 each subsequent report.

5

(g) EFFECTIVE DATE.—This section shall take effect

6 180 days after the date of the enactment of this Act.

7 SEC. 506. ADDITIONAL ICE DEPORTATION OFFICERS AND

8

SUPPORT STAFF.

9

(a) IN GENERAL.—The Secretary of Homeland Secu-

10 rity shall, subject to the availability of appropriations for

11 such purpose, increase the number of positions for full-

12 time active-duty Immigration and Customs Enforcement

13 deportation officers by 5,000 above the number of full-

14 time positions for which funds were appropriated for fiscal

15 year 2013. The Secretary will determine the rate at which

16 the additional officers will be added with due regard to

17 filling the positions as expeditiously as possible without

18 making any compromises in the selection or the training

19 of the additional officers.

20

(b) SUPPORT STAFF.—The Secretary shall, subject

21 to the availability of appropriations for such purpose, in-

22 crease the number of positions for full-time support staff

23 for Immigration and Customs Enforcement deportation

24 officers by 700 above the number of full-time positions for

25 which funds were appropriated for fiscal year 2013.

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149 1 SEC. 507. ADDITIONAL ICE PROSECUTORS.

2

The Secretary of Homeland Security shall increase

3 by 60 the number of full-time trial attorneys working for

4 the Immigration and Customs Enforcement Office of the

5 Principal Legal Advisor.
6 TITLE VI—MISCELLANEOUS 7 ENFORCEMENT PROVISIONS

8 SEC. 601. TIMELY REPATRIATION.

9

(a) LISTING OF COUNTRIES.—Beginning on the date

10 that is 6 months after the date of enactment of this Act,

11 and every 6 months thereafter, the Secretary of Homeland

12 Security shall publish a report including the following:

13

(1) A list of the following:

14

(A) Countries that have refused or unrea-

15

sonably delayed repatriation of an alien who is

16

a national of that country since the date of en-

17

actment of this Act and the total number of

18

such aliens, disaggregated by nationality.

19

(B) Countries that have an excessive repa-

20

triation failure rate.

21

(2) A list of each country that was included

22

under subparagraph (B) or (C) of paragraph (1) in

23

both the report preceding the current report and the

24

current report.

25

(b) SANCTIONS.—Beginning on the date that a coun-

26 try is included in a list under subsection (a)(2) and ending

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150

1 on the date that that country is not included in such list,

2 that country shall be subject to the following:

3

(1) The Secretary of State may not issue visas

4

under section 101(a)(15)(A)(iii) of the Immigration

5

and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii))

6

to attendants, servants, personal employees, and

7

members of their immediate families, of the officials

8

and employees of that country who receive non-

9

immigrant status under clause (i) or (ii) of section

10

101(a)(15)(A) of such Act.

11

(2) Each 6 months thereafter that the country

12

is included in that list, the Secretary of State shall

13

reduce the number of visas available under clause (i)

14

or (ii) of section 101(a)(15)(A) of the Immigration

15

and Nationality Act in a fiscal year to nationals of

16

that country by an amount equal to 10 percent of

17

the baseline visa number for that country. Except as

18

provided under section 243(d) of the Immigration

19

and Nationality Act (8 U.S.C. 1253), the Secretary

20

may not reduce the number to a level below 20 per-

21

cent of the baseline visa number.

22

(c) WAIVERS.—

23

(1) NATIONAL SECURITY WAIVER.—If the Sec-

24

retary of State submits to Congress a written deter-

25

mination that significant national security interests

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151

1

of the United States require a waiver of the sanc-

2

tions under subsection (b), the Secretary may waive

3

any reduction below 80 percent of the baseline visa

4

number. The Secretary of Homeland Security may

5

not delegate the authority under this subsection.

6

(2) TEMPORARY EXIGENT CIRCUMSTANCES.—If

7

the Secretary of State submits to Congress a written

8

determination that temporary exigent circumstances

9

require a waiver of the sanctions under subsection

10

(b), the Secretary may waive any reduction below 80

11

percent of the baseline visa number during 6-month

12

renewable periods. The Secretary of Homeland Secu-

13

rity may not delegate the authority under this sub-

14

section.

15

(d) EXEMPTION.—The Secretary of Homeland Secu-

16 rity, in consultation with the Secretary of State, may ex-

17 empt a country from inclusion in a list under subsection

18 (a)(2) if the total number of nonrepatriations outstanding

19 is less than 10 for the preceding 3-year period.

20

(e) UNAUTHORIZED VISA ISSUANCE.—Any visa

21 issued in violation of this section shall be void.

22

(f) NOTICE.—If an alien who has been convicted of

23 a criminal offense before a Federal or State court whose

24 repatriation was refused or unreasonably delayed is to be

25 released from detention by the Secretary of Homeland Se-

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152

1 curity, the Secretary shall provide notice to the State and

2 local law enforcement agency for the jurisdictions in which

3 the alien is required to report or is to be released. When

4 possible, and particularly in the case of violent crime, the

5 Secretary shall make a reasonable effort to provide notice

6 of such release to any crime victims and their immediate

7 family members.

8

(g) DEFINITIONS.—For purposes of this section:

9

(1) REFUSED OR UNREASONABLY DELAYED.—

10

A country is deemed to have refused or unreasonably

11

delayed the acceptance of an alien who is a citizen,

12

subject, national, or resident of that country if, not

13

later than 90 days after receiving a request to repa-

14

triate such alien from an official of the United

15

States who is authorized to make such a request, the

16

country does not accept the alien or issue valid trav-

17

el documents.

18

(2) FAILURE RATE.—The term ‘‘failure rate’’

19

for a period means the percentage determined by di-

20

viding the total number of repatriation requests for

21

aliens who are citizens, subjects, nationals, or resi-

22

dents of a country that that country refused or un-

23

reasonably delayed during that period by the total

24

number of such requests during that period.

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1

(3) EXCESSIVE REPATRIATION FAILURE

2

RATE.—The term ‘‘excessive repatriation failure

3

rate’’ means, with respect to a report under sub-

4

section (a), a failure rate greater than 10 percent

5

for any of the following:

6

(A) The period of the 3 full fiscal years

7

preceding the date of publication of the report.

8

(B) The period of 1 year preceding the

9

date of publication of the report.

10

(4) NUMBER OF NON-REPATRIATIONS OUT-

11

STANDING.—The term ‘‘number of non-repatriations

12

outstanding’’ means, for a period, the number of

13

unique aliens whose repatriation a country has re-

14

fused or unreasonably delayed and whose repatri-

15

ation has not occurred during that period.

16

(5) BASELINE VISA NUMBER.—The term ‘‘base-

17

line visa number’’ means, with respect to a country,

18

the average number of visas issued each fiscal year

19

to nationals of that country under clauses (i) and

20

(ii) of section 101(a)(15)(A) of the Immigration and

21

Nationality Act (8 U.S.C. 1101(a)(15)(A)) for the 3

22

full fiscal years immediately preceding the first re-

23

port under subsection (a) in which that country is

24

included in the list under subsection (a)(2).

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1

(h) GAO REPORT.—On the date that is 1 day after

2 the date that the President submits a budget under sec-

3 tion 1105(a) of title 31, United States Code, for fiscal year

4 2016, the Comptroller General of the United States shall

5 submit a report to Congress regarding the progress of the

6 Secretary of Homeland Security and the Secretary of

7 State in implementation of this section and in making re-

8 quests to repatriate aliens as appropriate.

9 SEC. 602. ENCOURAGING ALIENS TO DEPART VOLUN-

10

TARILY.

11

(a) IN GENERAL.—Section 240B of the Immigration

12 and Nationality Act (8 U.S.C. 1229c) is amended—

13

(1) in subsection (a)—

14

(A) by amending paragraph (1) to read as

15

follows:

16

‘‘(1) INSTEAD OF REMOVAL PROCEEDINGS.—If

17

an alien is not described in paragraph (2)(A)(iii) or

18

(4) of section 237(a), the Secretary of Homeland Se-

19

curity may permit the alien to voluntarily depart the

20

United States at the alien’s own expense under this

21

subsection instead of being subject to proceedings

22

under section 240.’’;

23

(B) by striking paragraph (3);

24

(C) by redesignating paragraph (2) as

25

paragraph (3);

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155

1

(D) by adding after paragraph (1) the fol-

2

lowing:

3

‘‘(2) BEFORE THE CONCLUSION OF REMOVAL

4

PROCEEDINGS.—If an alien is not described in para-

5

graph (2)(A)(iii) or (4) of section 237(a), the Attor-

6

ney General may permit the alien to voluntarily de-

7

part the United States at the alien’s own expense

8

under this subsection after the initiation of removal

9

proceedings under section 240 and before the con-

10

clusion of such proceedings before an immigration

11

judge.’’;

12

(E) in paragraph (3), as redesignated—

13

(i) by amending subparagraph (A) to

14

read as follows:

15

‘‘(A) INSTEAD OF REMOVAL.—Subject to

16

subparagraph (C), permission to voluntarily de-

17

part under paragraph (1) shall not be valid for

18

any period in excess of 120 days. The Secretary

19

may require an alien permitted to voluntarily

20

depart under paragraph (1) to post a voluntary

21

departure bond, to be surrendered upon proof

22

that the alien has departed the United States

23

within the time specified.’’;

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156

1

(ii) by redesignating subparagraphs

2

(B), (C), and (D) as subparagraphs (C),

3

(D), and (E), respectively;

4

(iii) by adding after subparagraph (A)

5

the following:

6

‘‘(B) BEFORE THE CONCLUSION OF RE-

7

MOVAL PROCEEDINGS.—Permission to volun-

8

tarily depart under paragraph (2) shall not be

9

valid for any period in excess of 60 days, and

10

may be granted only after a finding that the

11

alien has the means to depart the United States

12

and intends to do so. An alien permitted to vol-

13

untarily depart under paragraph (2) shall post

14

a voluntary departure bond, in an amount nec-

15

essary to ensure that the alien will depart, to be

16

surrendered upon proof that the alien has de-

17

parted the United States within the time speci-

18

fied. An immigration judge may waive the re-

19

quirement to post a voluntary departure bond

20

in individual cases upon a finding that the alien

21

has presented compelling evidence that the

22

posting of a bond will pose a serious financial

23

hardship and the alien has presented credible

24

evidence that such a bond is unnecessary to

25

guarantee timely departure.’’;

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157

1

(iv) in subparagraph (C), as redesig-

2

nated, by striking ‘‘subparagraphs (C) and

3

(D)(ii)’’ and inserting ‘‘subparagraphs (D)

4

and (E)(ii)’’;

5

(v) in subparagraph (D), as redesig-

6

nated, by striking ‘‘subparagraph (B)’’

7

each place that term appears and inserting

8

‘‘subparagraph (C)’’; and

9

(vi) in subparagraph (E), as redesig-

10

nated, by striking ‘‘subparagraph (B)’’

11

each place that term appears and inserting

12

‘‘subparagraph (C)’’; and

13

(F) in paragraph (4), by striking ‘‘para-

14

graph (1)’’ and inserting ‘‘paragraphs (1) and

15

(2)’’;

16

(2) in subsection (b)(2), by striking ‘‘a period

17

exceeding 60 days’’ and inserting ‘‘any period in ex-

18

cess of 45 days’’;

19

(3) by amending subsection (c) to read as fol-

20

lows:

21

‘‘(c) CONDITIONS ON VOLUNTARY DEPARTURE.—

22

‘‘(1) VOLUNTARY DEPARTURE AGREEMENT.—

23

Voluntary departure may only be granted as part of

24

an affirmative agreement by the alien. A voluntary

25

departure agreement under subsection (b) shall in-

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158

1

clude a waiver of the right to any further motion,

2

appeal, application, petition, or petition for review

3

relating to removal or relief or protection from re-

4

moval.

5

‘‘(2) CONCESSIONS BY THE SECRETARY.—In

6

connection with the alien’s agreement to depart vol-

7

untarily under paragraph (1), the Secretary of

8

Homeland Security may agree to a reduction in the

9

period of inadmissibility under subparagraph (A) or

10

(B)(i) of section 212(a)(9).

11

‘‘(3) ADVISALS.—Agreements relating to vol-

12

untary departure granted during removal pro-

13

ceedings under section 240, or at the conclusion of

14

such proceedings, shall be presented on the record

15

before the immigration judge. The immigration

16

judge shall advise the alien of the consequences of

17

a voluntary departure agreement before accepting

18

such agreement.

19

‘‘(4) FAILURE TO COMPLY WITH AGREE-

20

MENT.—

21

‘‘(A) IN GENERAL.—If an alien agrees to

22

voluntary departure under this section and fails

23

to depart the United States within the time al-

24

lowed for voluntary departure or fails to comply

25

with any other terms of the agreement (includ-

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159

1

ing failure to timely post any required bond),

2

the alien is—

3

‘‘(i) ineligible for the benefits of the

4

agreement;

5

‘‘(ii) subject to the penalties described

6

in subsection (d); and

7

‘‘(iii) subject to an alternate order of

8

removal if voluntary departure was granted

9

under subsection (a)(2) or (b).

10

‘‘(B) EFFECT OF FILING TIMELY AP-

11

PEAL.—If, after agreeing to voluntary depar-

12

ture, the alien files a timely appeal of the immi-

13

gration judge’s decision granting voluntary de-

14

parture, the alien may pursue the appeal in-

15

stead of the voluntary departure agreement.

16

Such appeal operates to void the alien’s vol-

17

untary departure agreement and the con-

18

sequences of such agreement, but precludes the

19

alien from another grant of voluntary departure

20

while the alien remains in the United States.

21

‘‘(5) VOLUNTARY DEPARTURE PERIOD NOT AF-

22

FECTED.—Except as expressly agreed to by the Sec-

23

retary in writing in the exercise of the Secretary’s

24

discretion before the expiration of the period allowed

25

for voluntary departure, no motion, appeal, applica-

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160

1

tion, petition, or petition for review shall affect, rein-

2

state, enjoin, delay, stay, or toll the alien’s obligation

3

to depart from the United States during the period

4

agreed to by the alien and the Secretary.’’;

5

(4) by amending subsection (d) to read as fol-

6

lows:

7

‘‘(d) PENALTIES FOR FAILURE TO DEPART.—If an

8 alien is permitted to voluntarily depart under this section

9 and fails to voluntarily depart from the United States

10 within the time period specified or otherwise violates the

11 terms of a voluntary departure agreement, the alien will

12 be subject to the following penalties:

13

‘‘(1) CIVIL PENALTY.—The alien shall be liable

14

for a civil penalty of $3,000. The order allowing vol-

15

untary departure shall specify this amount, which

16

shall be acknowledged by the alien on the record. If

17

the Secretary thereafter establishes that the alien

18

failed to depart voluntarily within the time allowed,

19

no further procedure will be necessary to establish

20

the amount of the penalty, and the Secretary may

21

collect the civil penalty at any time thereafter and

22

by whatever means provided by law. An alien will be

23

ineligible for any benefits under this chapter until

24

this civil penalty is paid.

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1

‘‘(2) INELIGIBILITY FOR RELIEF.—The alien

2

shall be ineligible during the time the alien remains

3

in the United States and for a period of 10 years

4

after the alien’s departure for any further relief

5

under this section and sections 240A, 245, 248, and

6

249. The order permitting the alien to depart volun-

7

tarily shall inform the alien of the penalties under

8

this subsection.

9

‘‘(3) REOPENING.—The alien shall be ineligible

10

to reopen the final order of removal that took effect

11

upon the alien’s failure to depart, or upon the alien’s

12

other violations of the conditions for voluntary de-

13

parture, during the period described in paragraph

14

(2). This paragraph does not preclude a motion to

15

reopen to seek withholding of removal under section

16

241(b)(3) or protection against torture, if the mo-

17

tion—

18

‘‘(A) presents material evidence of changed

19

country conditions arising after the date of the

20

order granting voluntary departure in the coun-

21

try to which the alien would be removed; and

22

‘‘(B) makes a sufficient showing to the sat-

23

isfaction of the Attorney General that the alien

24

is otherwise eligible for such protection.’’;

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162

1

(5) by amending subsection (e) to read as fol-

2

lows:

3

‘‘(e) ELIGIBILITY.—

4

‘‘(1) PRIOR GRANT OF VOLUNTARY DEPAR-

5

TURE.—An alien shall not be permitted to volun-

6

tarily depart under this section if the Secretary of

7

Homeland Security or the Attorney General pre-

8

viously permitted the alien to depart voluntarily.

9

‘‘(2) RULEMAKING.—The Secretary may pro-

10

mulgate regulations to limit eligibility or impose ad-

11

ditional conditions for voluntary departure under

12

subsection (a)(1) for any class of aliens. The Sec-

13

retary or Attorney General may by regulation limit

14

eligibility or impose additional conditions for vol-

15

untary departure under subsections (a)(2) or (b) of

16

this section for any class or classes of aliens.’’; and

17

(6) in subsection (f), by adding at the end the

18

following: ‘‘Notwithstanding section 242(a)(2)(D) of

19

this Act, sections 1361, 1651, and 2241 of title 28,

20

United States Code, any other habeas corpus provi-

21

sion, and any other provision of law (statutory or

22

nonstatutory), no court shall have jurisdiction to af-

23

fect, reinstate, enjoin, delay, stay, or toll the period

24

allowed for voluntary departure under this section.’’.

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1

(b) RULEMAKING.—The Secretary shall within one

2 year of the date of enactment of this Act promulgate regu-

3 lations to provide for the imposition and collection of pen-

4 alties for failure to depart under section 240B(d) of the

5 Immigration and Nationality Act (8 U.S.C. 1229c(d)).

6

(c) EFFECTIVE DATES.—

7

(1) IN GENERAL.—Except as provided in para-

8

graph (2), the amendments made by this section

9

shall apply with respect to all orders granting vol-

10

untary departure under section 240B of the Immi-

11

gration and Nationality Act (8 U.S.C. 1229c) made

12

on or after the date that is 180 days after the enact-

13

ment of this Act.

14

(2) EXCEPTION.—The amendment made by

15

subsection (a)(6) shall take effect on the date of the

16

enactment of this Act and shall apply with respect

17

to any petition for review which is filed on or after

18

such date.

19 SEC. 603. DETERRING ALIENS ORDERED REMOVED FROM

20

REMAINING IN THE UNITED STATES UNLAW-

21

FULLY.

22

(a) INADMISSIBLE ALIENS.—Section 212(a)(9)(A) of

23 the Immigration and Nationality Act (8 U.S.C.

24 1182(a)(9)(A)) is amended—

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1

(1) in clause (i), by striking ‘‘seeks admission

2

within 5 years of the date of such removal (or within

3

20 years’’ and inserting ‘‘seeks admission not later

4

than 5 years after the date of the alien’s removal (or

5

not later than 20 years after the alien’s removal’’;

6

and

7

(2) in clause (ii), by striking ‘‘seeks admission

8

within 10 years of the date of such alien’s departure

9

or removal (or within 20 years of’’ and inserting

10

‘‘seeks admission not later than 10 years after the

11

date of the alien’s departure or removal (or not later

12

than 20 years after’’.

13

(b) BAR ON DISCRETIONARY RELIEF.—Section 274D

14 of such Act (8 U.S.C. 324d) is amended—

15

(1) in subsection (a), by striking ‘‘Commis-

16

sioner’’ and inserting ‘‘Secretary of Homeland Secu-

17

rity’’; and

18

(2) by adding at the end the following:

19

‘‘(c) INELIGIBILITY FOR RELIEF.—

20

‘‘(1) IN GENERAL.—Unless a timely motion to

21

reopen is granted under section 240(c)(6), an alien

22

described in subsection (a) shall be ineligible for any

23

discretionary relief from removal (including cancella-

24

tion of removal and adjustment of status) during the

25

time the alien remains in the United States and for

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165

1

a period of 10 years after the alien’s departure from

2

the United States.

3

‘‘(2) SAVINGS PROVISION.—Nothing in para-

4

graph (1) shall preclude a motion to reopen to seek

5

withholding of removal under section 241(b)(3) or

6

protection against torture, if the motion—

7

‘‘(A) presents material evidence of changed

8

country conditions arising after the date of the

9

final order of removal in the country to which

10

the alien would be removed; and

11

‘‘(B) makes a sufficient showing to the sat-

12

isfaction of the Attorney General that the alien

13

is otherwise eligible for such protection.’’.

14

(c) EFFECTIVE DATES.—The amendments made by

15 this section shall take effect on the date of the enactment

16 of this Act with respect to aliens who are subject to a final

17 order of removal entered before, on, or after such date.

18 SEC. 604. REINSTATEMENT OF REMOVAL ORDERS.

19

(a) IN GENERAL.—Section 241(a)(5) of the Immi-

20 gration and Nationality Act (8 U.S.C. 1231(a)(5)) is

21 amended to read as follows:

22

‘‘(5) REINSTATEMENT OF REMOVAL ORDERS

23

AGAINST ALIENS ILLEGALLY REENTERING.—If the

24

Secretary of Homeland Security finds that an alien

25

has entered the United States illegally after having

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166

1

been removed, deported, or excluded or having de-

2

parted voluntarily, under an order of removal, depor-

3

tation, or exclusion, regardless of the date of the

4

original order or the date of the illegal entry—

5

‘‘(A) the order of removal, deportation, or

6

exclusion is reinstated from its original date

7

and is not subject to being reopened or reviewed

8

notwithstanding section 242(a)(2)(D);

9

‘‘(B) the alien is not eligible and may not

10

apply for any relief under this Act, regardless

11

of the date that an application or request for

12

such relief may have been filed or made; and

13

‘‘(C) the alien shall be removed under the

14

order of removal, deportation, or exclusion at

15

any time after the illegal entry.

16

Reinstatement under this paragraph shall not re-

17

quire proceedings under section 240 or other pro-

18

ceedings before an immigration judge.’’.

19

(b) JUDICIAL REVIEW.—Section 242 of the Immigra-

20 tion and Nationality Act (8 U.S.C. 1252) is amended by

21 adding at the end the following:

22

‘‘(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER

23 SECTION 241(a)(5).—

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167

1

‘‘(1) REVIEW OF REINSTATEMENT.—Judicial

2

review of determinations under section 241(a)(5) is

3

available in an action under subsection (a).

4

‘‘(2) NO REVIEW OF ORIGINAL ORDER.—Not-

5

withstanding any other provision of law (statutory or

6

nonstatutory), including section 2241 of title 28,

7

United States Code, any other habeas corpus provi-

8

sion, or sections 1361 and 1651 of such title, no

9

court shall have jurisdiction to review any cause or

10

claim, arising from, or relating to, any challenge to

11

the original order.’’.

12

(c) EFFECTIVE DATE.—The amendments made by

13 subsections (a) and (b) shall take effect as if enacted on

14 April 1, 1997, and shall apply to all orders reinstated or

15 after that date by the Secretary of Homeland Security (or

16 by the Attorney General prior to March 1, 2003), regard-

17 less of the date of the original order.

18 SEC. 605. CLARIFICATION WITH RESPECT TO DEFINITION

19

OF ADMISSION.

20

Section 101(a)(13)(A) of the Immigration and Na-

21 tionality Act (8 U.S.C. 1101(a)(13)(A)) is amended by

22 adding at the end the following: ‘‘An alien’s adjustment

23 of status to that of lawful permanent resident status under

24 any provision of this Act, or under any other provision

25 of law, shall be considered an ‘admission’ for any purpose

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168

1 under this Act, even if the adjustment of status occurred

2 while the alien was present in the United States.’’.

3 SEC. 606. REPORTS TO CONGRESS ON THE EXERCISE AND

4

ABUSE OF PROSECUTORIAL DISCRETION.

5

(a) IN GENERAL.—Not later than 180 days after the

6 end of each fiscal year, the Secretary of Homeland Secu-

7 rity and the Attorney General shall each provide to the

8 Committees on the Judiciary of the House of Representa-

9 tives and of the Senate a report on the following:

10

(1) Aliens apprehended or arrested by State or

11

local law enforcement agencies who were identified

12

by the Department of Homeland Security in the pre-

13

vious fiscal year and for whom the Department of

14

Homeland Security did not issue detainers and did

15

not take into custody despite the Department of

16

Homeland Security’s findings that the aliens were

17

inadmissible or deportable.

18

(2) Aliens who were applicants for admission in

19

the previous fiscal year but not clearly and beyond

20

a doubt entitled to be admitted by an immigration

21

officer and who were not detained as required pursu-

22

ant to section 235(b)(2)(A) of the Immigration and

23

Nationality Act (8 U.S.C. 1225(b)(2)(A)).

24

(3) Aliens who in the previous fiscal year were

25

found by Department of Homeland Security officials

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169

1

performing duties related to the adjudication of ap-

2

plications for immigration benefits or the enforce-

3

ment of the immigration laws to be inadmissible or

4

deportable who were not issued notices to appear

5

pursuant to section 239 of such Act (8 U.S.C. 1229)

6

or placed into removal proceedings pursuant to sec-

7

tion 240 (8 U.S.C. 1229a), unless the aliens were

8

placed into expedited removal proceedings pursuant

9

to section 235(b)(1)(A)(i) (8 U.S.C.

10

1225(b)(1)(A)(5)) or section 238 (8 U.S.C. 1228),

11

were granted voluntary departure pursuant to sec-

12

tion 240B, were granted relief from removal pursu-

13

ant to statute, were granted legal nonimmigrant or

14

immigrant status pursuant to statute, or were deter-

15

mined not to be inadmissible or deportable.

16

(4) Aliens issued notices to appear that were

17

cancelled in the previous fiscal year despite the De-

18

partment of Homeland Security’s findings that the

19

aliens were inadmissible or deportable, unless the

20

aliens were granted relief from removal pursuant to

21

statute, were granted voluntary departure pursuant

22

to section 240B of such Act (8 U.S.C. 1229c), or

23

were granted legal nonimmigrant or immigrant sta-

24

tus pursuant to statute.

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170

1

(5) Aliens who were placed into removal pro-

2

ceedings, whose removal proceedings were termi-

3

nated in the previous fiscal year prior to their con-

4

clusion, unless the aliens were granted relief from

5

removal pursuant to statute, were granted voluntary

6

departure pursuant to section 240B, were granted

7

legal nonimmigrant or immigrant status pursuant to

8

statute, or were determined not to be inadmissible or

9

deportable.

10

(6) Aliens granted parole pursuant to section

11

212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).

12

(7) Aliens granted deferred action, extended

13

voluntary departure or any other type of relief from

14

removal not specified in the Immigration and Na-

15

tionality Act or where determined not to be inadmis-

16

sible or deportable.

17

(b) CONTENTS OF REPORT.—The report shall include

18 a listing of each alien described in each paragraph of sub-

19 section (a), including when in the possession of the De-

20 partment of Homeland Security their names, fingerprint

21 identification numbers, alien registration numbers, and

22 reason why each was granted the type of prosecutorial dis-

23 cretion received. The report shall also include current

24 criminal histories on each alien from the Federal Bureau

25 of Investigation.

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171 1 SEC. 607. CERTAIN ACTIVITIES RESTRICTED.

2

(a) IN GENERAL.—

3

(1) No funds, resources, or fees made available

4

to the Secretary of Homeland Security, or to any

5

other official of a Federal agency, by this Act or any

6

other Act for any fiscal year, including any deposits

7

into the ‘‘Immigration Examinations Fee Account’’

8

established under section 286(m) of the Immigration

9

and Nationality Act (8 U.S.C. 1356(m)), may be

10

used to implement, administer, enforce, or carry out

11

(including through the issuance of any regulations)

12

any of the policy changes set forth in the following

13

memoranda (or any substantially similar policy

14

changes issued or taken on or after January 9,

15

2015, whether set forth in memorandum, Executive

16

order, regulation, directive, or by other action):

17

(A) The memorandum from the Director of

18

United States Immigration and Customs En-

19

forcement entitled ‘‘Civil Immigration Enforce-

20

ment: Priorities for the Apprehension, Deten-

21

tion, and Removal of Aliens’’ dated March 2,

22

2011.

23

(B) The memorandum from the Director

24

of United States Immigration and Customs En-

25

forcement entitled ‘‘Exercising Prosecutorial

26

Discretion Consistent with the Civil Immigra-

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172

1

tion Enforcement Priorities of the Agency for

2

the Apprehension, Detention, and Removal of

3

Aliens’’ dated June 17, 2011.

4

(C) The memorandum from the Principal

5

Legal Advisor of United States Immigration

6

and Customs Enforcement entitled ‘‘Case-by-

7

Case Review of Incoming and Certain Pending

8

Cases’’ dated November 17, 2011.

9

(D) The memorandum from the Director

10

of United States Immigration and Customs En-

11

forcement entitled ‘‘Civil Immigration Enforce-

12

ment: Guidance on the Use of Detainers in the

13

Federal, State, Local, and Tribal Criminal Jus-

14

tice Systems’’ dated December 21, 2012.

15

(E) The memorandum from the Secretary

16

of Homeland Security entitled ‘‘Southern Bor-

17

der and Approaches Campaign’’ dated Novem-

18

ber 20, 2014.

19

(F) The memorandum from the Secretary

20

of Homeland Security entitled ‘‘Policies for the

21

Apprehension, Detention and Removal of Un-

22

documented Immigrants’’ dated November 20,

23

2014.

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173

1

(G) The memorandum from the Secretary

2

of Homeland Security entitled ‘‘Secure Commu-

3

nities’’ dated November 20, 2014.

4

(H) The memorandum from the Secretary

5

of Homeland Security entitled ‘‘Exercising

6

Prosecutorial Discretion with Respect to Indi-

7

viduals Who Came to the United States as Chil-

8

dren and with Respect to Certain Individuals

9

Who Are the Parents of U.S. Citizens or Per-

10

manent Residents’’ dated November 20, 2014.

11

(I) The memorandum from the Secretary

12

of Homeland Security entitled ‘‘Expansion of

13

the Provisional Waiver Program’’ dated Novem-

14

ber 20, 2014.

15

(J) The memorandum from the Secretary

16

of Homeland Security entitled ‘‘Policies Sup-

17

porting U.S. High-Skilled Businesses and

18

Workers’’ dated November 20, 2014.

19

(K) The memorandum from the Secretary

20

of Homeland Security entitled ‘‘Families of

21

U.S. Armed Forces Members and Enlistees’’

22

dated November 20, 2014.

23

(L) The memorandum from the Secretary

24

of Homeland Security entitled ‘‘Directive to

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174

1

Provide Consistency Regarding Advance Pa-

2

role’’ dated November 20, 2014.

3

(M) The memorandum from the Secretary

4

of Homeland Security entitled ‘‘Policies to Pro-

5

mote and Increase Access to U.S. Citizenship’’

6

dated November 20, 2014.

7

(N) The memorandum from the President

8

entitled ‘‘Modernizing and Streamlining the

9

U.S. Immigrant Visa System for the 21st Cen-

10

tury’’ dated November 21, 2014.

11

(O) The memorandum from the President

12

entitled ‘‘Creating Welcoming Communities and

13

Fully Integrating Immigrants and Refugees’’

14

dated November 21, 2014.

15

(2) The memoranda referred to in subsection

16

(a) (or any substantially similar policy changes

17

issued or taken on or after January 9, 2015, wheth-

18

er set forth in memorandum, Executive order, regu-

19

lation, directive, or by other action) have no statu-

20

tory or constitutional basis and therefore have no

21

legal effect.

22

(3) No funds or fees made available to the Sec-

23

retary of Homeland Security, or to any other official

24

of a Federal agency, by this Act or any other Act

25

for any fiscal year, including any deposits into the

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175

1

‘‘Immigration Examinations Fee Account’’ estab-

2

lished under section 286(m) of the Immigration and

3

Nationality Act (8 U.S.C. 1356(m)), may be used to

4

grant any Federal benefit to any alien pursuant to

5

any of the policy changes set forth in the memo-

6

randa referred to in subsection (a) (or any substan-

7

tially similar policy changes issued or taken on or

8

after January 9, 2015, whether set forth in memo-

9

randum, Executive order, regulation, directive, or by

10

other action).

11

(b) DEFERRED ACTION FOR CHILDHOOD ARRIV-

12 ALS.—No funds, resources or fees made available to the

13 Secretary of Homeland Security, or to any other official

14 of a Federal agency, by this Act or any other Act for any

15 fiscal year, including any deposits into the ‘‘Immigration

16 Examinations Fee Account’’ established under section

17 286(m) of the Immigration and Nationality Act (8 U.S.C.

18 1356(m)), may be used to consider or adjudicate any new,

19 renewal or previously denied application for any alien re-

20 questing consideration of deferred action for childhood ar-

21 rivals, as authorized by the Executive memorandum dated

22 June 15, 2012, and effective on August 15, 2012 (or any

23 substantially similar policy changes issued or taken on or

24 after January 9, 2015, whether set forth in memorandum,

25 Executive order, regulation, directive, or by other action).

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176 1 SEC. 608. GAO STUDY ON DEATHS IN CUSTODY.

2

The Comptroller General of the United States shall

3 submit to Congress within 6 months after the date of the

4 enactment of this Act, a report on the deaths in custody

5 of detainees held by the Department of Homeland Secu-

6 rity. The report shall include the following information

7 with respect to any such deaths and in connection there-

8 with:

9

(1) Whether any such deaths could have been

10

prevented by the delivery of medical treatment ad-

11

ministered while the detainee is in the custody of the

12

Department of Homeland Security.

13

(2) Whether Department practice and proce-

14

dures were properly followed and obeyed.

15

(3) Whether such practice and procedures are

16

sufficient to protect the health and safety of such

17

detainees.

18

(4) Whether reports of such deaths were made

19

to the Deaths in Custody Reporting Program.

20 SEC. 609. REMOVAL PROCEEDINGS.

21

Subsection (b) of section 240 of the Immigration and

22 Nationality Act (8 U.S.C. 1229a) is amended by adding

23 at the end the following new paragraph (8):

24

‘‘(8) ORDER OF CONSIDERATION OF PRO-

25

CEEDINGS.—Whenever possible, proceedings shall

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177

1

take place in the order in which aliens are placed in

2

proceedings.’’.

Æ

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JS-CAND 44 (Rev. 07/16) Case 3C:1a7se-c5v-:1070-4c8v5-0-W05H7O4CIDVoIcLumCeOntV1E1-4-R3 FSFiHleiledEd0E02T2/0/037/1/177 PPaaggee13o2f12of 322

The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

COUNTY OF SANTA CLARA

DONALD J. TRUMP, President of the United States of America,

JOHN F. KELLY, in his offficial capacity as Secretary of the United

States Department of Homeland Security, DANA J. BOENTE, in his

official capacity as Acting Attorney General of the United States,

MARK SANDY, Acting Director of the Office of Management and

Budget, and DOES 1-50

(b) County of Residence of First Listed Plaintiff County of Santa Clara
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, Email and Telephone Number)

County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: INLAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)

John W. Keker - #49092

Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111

Tel: 415-391-5400; jkeker@kvn.com

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff
2 U.S. Government Defendant

3 Federal Question (U.S. Government Not a Party)
4 Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only) PTF

DEF

and One Box for Defendant) PTF DEF

Citizen of This State
Citizen of Another State
Citizen or Subject of a Foreign Country

1

1 Incorporated or Principal Place

of Business In This State

2

2 Incorporated and Principal Place

of Business In Another State

3

3 Foreign Nation

4

4

5

5

6

6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment Of Veteran’s Benefits
151 Medicare Act
152 Recovery of Defaulted Student Loans (Excludes Veterans)
153 Recovery of Overpayment of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

PERSONAL INJURY
310 Airplane
315 Airplane Product Liability
320 Assault, Libel & Slander
330 Federal Employers’ Liability
340 Marine
345 Marine Product Liability
350 Motor Vehicle
355 Motor Vehicle Product Liability
360 Other Personal Injury
362 Personal Injury Medical Malpractice

PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/ Pharmaceutical Personal Injury
Product Liability
368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY 370 Other Fraud
371 Truth in Lending
380 Other Personal Property Damage
385 Property Damage Product Liability

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

440 Other Civil Rights
441 Voting
442 Employment
443 Housing/ Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

V. ORIGIN (Place an “X” in One Box Only)

Habeas Corpus: 463 Alien Detainee
510 Motions to Vacate Sentence
530 General
535 Death Penalty Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of Confinement

625 Drug Related Seizure of Property 21 USC § 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

422 Appeal 28 USC § 158 423 Withdrawal
28 USC § 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS-Third Party 26 USC § 7609

375 False Claims Act
376 Qui Tam (31 USC § 3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/ Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information Act
896 Arbitration
899 Administrative Procedure Act/Review or Appeal of Agency Decision
950 Constitutionality of State Statutes

1 Original Proceeding

2 Removed from State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5 Transferred from Another District

6 Multidistrict

8 Multidistrict

Litigation–Transfer Litigation–Direct File

(Specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION Taxing and Spending Clause, U.S. Const., art. 1, sec. 8, cl. 1; U.S. Const., amend. V; U.S. Const., amend. X Brief description of cause: Challenge to constitutionality of Presidential Executive Order No. 13768

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, Fed. R. Civ. P.

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes

No

VIII. RELATED CASE(S)

IF ANY (See instructions):

JUDGE

IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)

(Place an “X” in One Box Only)

SAN FRANCISCO/OAKLAND

DOCKET NUMBER

SAN JOSE

EUREKA-MCKINLEYVILLE

DATE: February 3, 2017

SIGNATURE OF ATTORNEY OF RECORD: /s/ John W. Keker

American LegalNet, Inc. www.FormsWorkFlow.com

JS-CAND 44 (rev. 07/1C6)ase 3C:1a7se-c5v-:1070-4c8v5-0-W05H7O4 Document 11-4-3 FFileiledd0022/0/037/1/177 PPaaggee23o2f22of 322

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44

Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)
c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).”

II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.

(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the six boxes.

(1) Original Proceedings. Cases originating in the United States district courts.

(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box.

(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above.

(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.

Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”

Date and Attorney Signature. Date and sign the civil cover sheet.

American LegalNet, Inc. www.FormsWorkFlow.com

 
 Case 3:17-cv-00485-WHO Document 12 Filed 02/07/17 Page 1 of 4

1 DENNIS J. HERRERA, StateBar#139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City .f\ttorney

4 YVONNE R. MERE, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VANAKEN, StateBar#241755

MOLLIE M. LEE, State Bar #251404

6 SARA J. EISENBERG, State Bar #269303

MATTHEWS. LEE, StateBar#295247

7 NEHA GUPTA, State Bar# 308864

Deputy City Attorneys

8 City Hall, Room 234

1 Dr. Carlton B. Goodlett Place

9 San Francisco, California 94102-4602

Telephone: (415) 554-4748

10 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@ sfgov.org

11

Attorneys for Plaintiff

12 CITY AND COUNTY OF SAN FRANCISCO

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

CITY AND COUNTY OF SAN

Case No. 17-485 WHO

17 FRANCISCO,

18

Plaintiff,

STATEMENT OF SUPPORT REGARDING

SANTA CLARA'S ADMINISTRATIVE

19

vs.

MOTION TO CONSIDER WHETHER CASES

SHOULD BE RELATED

20 DONALD J. TRUMP, President of the United

States, UNITED STATES OF AMERICA,

Date:

21 JOHN F. KELLY, Secretary of United States Time:

Department of Homeland Security, DANA J. 22 BOENTE, Acting Attorney General of the

Hearing Judge: Place:

Hon. William Orrick

United States, DOES 1-100,

23

Trial Date: Not set

Defendants.

24

25

26

27

28

CCSF v. President Trump, et al; Case No. 17-485 WHO

1

Case 3:17-cv-00485-WHO Document 12 Filed 02/07/17 Page 2 of 4

1 1. INTRODUCTION

2

The County of Santa Clara ( "Santa Clara") filed an Administrative Motion (the

3 "Administrative Motion") to consider whether the actions City and County ofS.F. v. Trumpet al.,

4 Case No. 3:17-cv-00485-WHO (the "San Francisco Action") and County of Santa Clara v. v. Trump et 5 al., Case No. 5:17-cv-00574-LHK (the "Santa Clara County Action") may be related cases under Civil 6 Local Rule 3-12(b). See Dkt. 11. Pursuant to Civil Local Rule 3-12(d), San Francisco files this

7 Statement in Support of Santa Clara's Administrative Motion.

8 2. DISCUSSION

9

"An action is related to another when: (1) The actions concern substantially the same parties,

10 property, transaction or event; and (2) it appears likely that there will be an unduly burdensome

11 duplication of labor and expense or conflicting results if the cases are conducted before different

12 Judges." N.D. Cal. Civ. L.R. 3-12(a). The San Francisco and the Santa Clara County Actions both

13 challenge the constitutionality of President Donald J. Trump's January 25, 2017 executive order

14 directing specified actions against state, local, and municipal governments deemed to be so-called 15 "sanctuary jurisdictions," Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the "Executive 16 Order"). Among other things, the Executive Order states: "The Attorney General shall take

17 appropriate enforcement action against any entity that violates 8 U.S.C. 1373 [Section 1373], or which 18 has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law." !d. 19 § 9(c) (the "Enforcement Directive").

20

The San Francisco Action asserts three causes of action. First, it seeks declaratory and

21 injunctive relief that San Francisco complies with Section 1373(a). San Francisco Action, Compl. f)[ 22 96-100. Second, it brings a facial and as-applied challenge to Section 1373(a), alleging that Section 23 1373 violates the Tenth Amendment to the United States Constitution and s'eeking declaratory and 24 injunctive relief on that basis. ld. <j[<j[ 101-103. Third, it seeks an injunction against unconstitutional 25 applications of Enforcement Directive that would violate the Tenth Amendment to the United States 26 Constitution. /d. f)[ 104-07.

27

The Santa Clara County Action asserts four causes of action seeking declaratory and injunctive

28 relief on the grounds that Sections 6 and 9 of the Executive Order violate the Fifth Amendment's Due

CCSF v. President Trump, et al; Case No. 17-485 WHO

2

Case 3:17-cv-00485-WHO Document 12 Filed 02/07/17 Page 3 of 4

1 Process Clause, the inherent separation of powers set forth in the United States Constitution, and also

2 states a claim for violation of the Tenth Amendment. See Santa Clara County Action, Compl. CJr][ 118-

3 58.

4

Both cases name as defendants President Trump, U.S. Department of Homeland Security

5 Secretary John F. Kelly, and Acting Attorney General Dana J. Boente. The San Francisco Action also

6 names as a defendant the United States. The Santa Clara County Action also names as a defendant

7 Acting Director of the Office of Management and Budget Mark Sandy.

8

Given the overlap in parties, factual and legal issues involved, and the relief sought in both

9 Actions, it is possible that conducting the actions in two courts simultaneously may lead to

10 unnecessary duplication of effort and the potential for conflicting results.

11 3. CONCLUSION

12

For the foregoing reasons, San Francisco joins Santa Clara in respectfully requesting that the

13 Court consider whether the San Francisco and Santa Clara County Actions are related under Local

14 Rule 3-12.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CCSF v. President Trump, et al; Case No. 17-485 WHO

3

Case 3:17-cv-00485-WHO Document 12 Filed 02/07/17 Page 4 of 4

1 Dated: February 7, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DENNIS J. HERRERA City Attorney RONALD FLYNN JESSE C. SMITH
YVONNE R. MERE
CHRISTINE VANAKEN MOLLIE M. LEE SARA J. EISENBERG MATTHEWS. LEE NEHAGUPTA Deputy City Attorneys
By: Is/ Mollie M. Lee MOLLIE M. LEE Deputy City Attorney
Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO

CCSF v. President Trump, et al; Case No. 17-485 WHO

4

 
 Case 3:17-cv-00485-WHO Document 18 Filed 02/10/17 Page 1 of 3

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
CITY AND COUNTY OF SAN
16 FRANCISCO,

No. 3:17-cv-00485-WHO

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, et al.,

20

Defendants.

DEFENDANTS’ STATEMENT OF SUPPORT REGARDING ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED

21

22
INTRODUCTION
23
The County of Santa Clara (“Santa Clara”), a non-party herein, has filed an administrative
24
motion (Doc. 11) to consider whether this action should be related to County of Santa Clara v.
25
Trump, et al., Case No. 5:17-cv-00574-LHK (N.D. Cal.), for purposes of Civil Local Rule 3-12.
26
The defendants file this statement of support in relation to Santa Clara’s motion pursuant to Civil
27
Local Rule 3-12(e).
28

Statement of Support: Related Cases

No. 3:17-cv-00485-WHO

1

Case 3:17-cv-00485-WHO Document 18 Filed 02/10/17 Page 2 of 3

1

DISCUSSION

2

Under the Court’s Local Rules, a civil action is related to another when “(1) The actions

3 concern substantially the same parties, property, transaction or event; and (2) It appears likely that

4 there will be an unduly burdensome duplication of labor and expense or conflicting results if the

5 cases are conducted before different Judges.” Civ. L.R. 3-12(a). Although there are some

6 differences between this action and the Santa Clara action, these criteria are met here.

7

This action and the Santa Clara action challenge the constitutionality of Executive Order

8 No. 13,768, Enhancing Public Safety in the Interior of the United States. 82 Fed. Reg. 8,799

9 (Jan. 25, 2017). Both actions include claims under the Tenth Amendment, although each action

10 also includes other claims. The plaintiff in each case is a municipality of the State of California,

11 and both actions include the President, the Secretary of Homeland Security, and the Attorney

12 General as defendants, although this action adds the United States as a defendant and the Santa

13 Clara action adds the Director of the Office of Management and Budget. Both actions ask the

14 Court to enjoin one or more provisions of the Executive Order.

15

Adjudicating this action and the Santa Clara action before different judges would likely

16 cause an unduly burdensome duplication of labor, and may lead to conflicting results. Both

17 actions will require briefing on the content and background of Executive Order No. 13,768 and

18 the merits of the plaintiffs’ Tenth Amendment claims. Adjudicating the various claims will

19 require interpreting the Executive Order as well as applying the law on Tenth Amendment

20 challenges.

21

CONCLUSION

22

Accordingly, the defendants support Santa Clara’s administrative motion to consider

23 whether this action should be related to County of Santa Clara v. Trump, et al., Case No. 5:17-cv-

24 00574-LHK (N.D. Cal.), for purposes of Civil Local Rule 3-12.

25 Dated: February 10, 2017

26
27
28
Statement of Support: Related Cases No. 3:17-cv-00485-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General
2

Case 3:17-cv-00485-WHO Document 18 Filed 02/10/17 Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Statement of Support: Related Cases No. 3:17-cv-00485-WHO

BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; DANA J. BOENTE, Acting Attorney General of the United States
3

 
 Case 3:17-cv-00485-WHO Document 20 Filed 02/27/17 Page 1 of 57

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

Plaintiff,

FIRST AMENDED COMPLAINT FOR

19

DECLARATORY AND INJUNCTIVE RELIEF

vs.

20

Trial Date: Not set

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

24

Defendants.

25

26

27

28

First Amended Complaint; Case No. 3:17-cv-00485-WHO

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Case 3:17-cv-00485-WHO Document 20 Filed 02/27/17 Page 2 of 57

1

INTRODUCTION

2

1. In blatant disregard of the law, the President of the United States seeks to coerce local

3 authorities to bend to his will and abandon “Sanctuary City” laws and policies. To that end, on

4 January 25, 2017, the President issued an Executive Order entitled “Enhancing Public Safety in the

5 Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Executive

6 Order”). The Executive Order announces that it is the Executive Branch’s policy to withhold federal

7 funds from “sanctuary jurisdictions,” directs the Attorney General and Secretary of Homeland Security

8 to ensure that sanctuary jurisdictions do not receive federal grants, and directs the Attorney General to

9 take enforcement action against any local entity that “hinders the enforcement of Federal law.” The

10 Executive Order undermines established principles of federalism and separation of powers, violates

11 the United States Constitution, and impermissibly threatens cities with catastrophic financial

12 consequences.

13

2. The President and San Francisco agree that the City and County of San Francisco

14 (“San Francisco”) is a Sanctuary City, but disagree about what that means. San Francisco laws limit

15 when city employees and agencies may assist with the enforcement of federal immigration law. These

16 laws generally prohibit city employees from using city funds or resources to assist in the enforcement

17 of federal immigration law, unless required by federal or state law. They specifically prohibit local law

18 enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer

19 requests, which are voluntary, and limit when local law enforcement officers may give ICE advance

20 notice of a person’s release from local jail.

21

3. Like many other cities, San Francisco is a city of immigrants—many of whom are

22 undocumented—who come here to live, work, and raise families. San Francisco’s Sanctuary City laws

23 make San Francisco safer, healthier, and economically stronger. San Francisco is safer when all

24 people, including undocumented immigrants, feel safe reporting crimes. San Francisco is healthier

25 when all residents, including undocumented immigrants, access public health programs. And

26 San Francisco is economically and socially stronger when all children, including undocumented

27 immigrants, attend school. Using city and county resources for federal immigration enforcement

28 breeds distrust of local government and officials who have no power to change federal laws, and can

First Amended Complaint; Case No. 3:17-cv-00485-WHO 1

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Case 3:17-cv-00485-WHO Document 20 Filed 02/27/17 Page 3 of 57

1 also wrench apart family and community structures that support residents and thus conserve resources.

2 For these reasons, among others, San Francisco has directed its employees and officers not to assist the

3 Federal government in enforcing federal immigration law, with limited exceptions.

4

4. San Francisco faces the imminent loss of more than $2 billion in federal funds and

5 impending enforcement action if it does not capitulate to the President’s demand that it help enforce

6 federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat.

7

5. The threat San Francisco faces now is particularly troubling given that San Francisco

8 already complies with all federal immigration laws. The Executive Order relies on Title 8, Section

9 1373 of the United States Code (“Section 1373”), which provides that local governments may not

10 prohibit or restrict any government entity or official from “sending to, or receiving from, [federal

11 immigration officials] information regarding the citizenship or immigration status . . . of any

12 individual.”

13

6. San Francisco’s laws comply with Section 1373. San Francisco previously prohibited

14 employees and officials from sharing information regarding immigration status but amended this

15 language to ensure compliance with Section 1373. Under current law, San Francisco does not prohibit

16 or restrict its employees from sharing information about the citizenship or immigration status of any

17 individual with federal immigration officials. Section 1373 has thus already undermined San

18 Francisco’s Sanctuary City laws and intruded into its sovereign power to govern the official actions of

19 its officers and employees. San Francisco will bend no further.

20

7. The Executive Order is a further and more severe invasion of San Francisco’s

21 sovereignty. The Executive Order not only interferes with San Francisco’s ability to direct the official

22 actions of its officers and employees but also threatens new consequences for failing to comply with

23 Section 1373. In this action, San Francisco seeks declaratory relief that Section 1373 and the

24 Executive order are unconstitutional on their face and as applied to state and local Sanctuary City laws

25 such as San Francisco’s. The Executive Branch may not commandeer state and local officials to

26 enforce federal law.

27

8. The Constitution establishes a balance of power between the state and Federal

28 governments, as well as among the coordinate branches of Federal government, to prevent the

First Amended Complaint; Case No. 3:17-cv-00485-WHO 2

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Case 3:17-cv-00485-WHO Document 20 Filed 02/27/17 Page 4 of 57

1 excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from

2 any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated

3 to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

4 respectively, or to the people.” This state sovereignty extends to political subdivisions of the State,

5 including cities and counties such as San Francisco.

6

9. This lawsuit is about state sovereignty and a local government’s autonomy to devote

7 resources to local priorities and to control the exercise of its own police powers, rather than being

8 forced to carry out the agenda of the Federal government. Under the Constitution and established

9 principles of federalism, state and local governments have this autonomy. The Executive Order

10 purports otherwise to wrest this autonomy from state and local governments, and a court order is

11 needed to resolve this controversy.

12

10. This lawsuit is also about the separation of powers established by Article 1, Section 8

13 of the Unites States Constitution. Congress, not the Executive Branch, has the authority to determine

14 how federal funds will be spent.

15

11. San Francisco recognizes that there will be additional developments related to the

16 Executive Order in the weeks and months to come. But the consequences threatened by the Executive

17 Order are too severe for San Francisco to wait. The Executive Order threatens funds that support vital

18 services, the loss of community trust, and the loss of San Francisco’s sovereign authority to set and

19 follow its own laws on matters appropriately and historically within the control of local government.

20 San Francisco has no choice but to seek the intervention of this Court to ensure that its rights and

21 residents are protected, and that the Administration complies with Federal law and the Constitution.

22

12. San Francisco seeks declaratory and injunctive relief against the United States of

23 America and the above-named federal officials for violating the Tenth Amendment, U.S. Const.

24 amend. X. San Francisco further seeks a declaration that it complies with Title 8, Section 1373 of the

25 United States Code (“Section 1373”) under the Declaratory Judgment Act, 28 U.S.C. Sections 2201

26 and 2202 et seq.

27 //

28 //

First Amended Complaint; Case No. 3:17-cv-00485-WHO 3

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Case 3:17-cv-00485-WHO Document 20 Filed 02/27/17 Page 5 of 57

1

JURISDICTION AND VENUE

2

13. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

3 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

4 seq.

5

14. Venue properly lies within the Northern District of California because Plaintiff,

6 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

7 rise to this action occurred in this District. 28 U.S.C. § 1391(e).

8

PARTIES

9

15. Plaintiff San Francisco is a municipal corporation organized and existing under and by

10 virtue of the laws of the State of California, and is a charter city and county.

11

16. Defendant Donald J. Trump is the President of the United States. He is sued in his

12 official capacity.

13

17. Defendant United States of America is sued under 28 U.S.C. Section 1346.

14

18. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the

15 United States Federal government with the primary mission of securing the United States. Defendant

16 John F. Kelly is the Secretary of DHS. Secretary Kelly is responsible for executing relevant provisions

17 of the Executive Order. Secretary Kelly is sued in his official capacity.

18

19. The Attorney General (“AG”) is a cabinet department of the United States Federal

19 government overseeing the Department of Justice. Defendant Jefferson B. Sessions is the Attorney

20 General. Attorney General Sessions is responsible for executing relevant provisions of the Executive

21 Order. Attorney General Sessions is sued in his official capacity.1

22

20. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the

23 true names or capacities of said Defendants, who were responsible for the alleged violations alleged,

24 but pray that the same may be alleged in this complaint when ascertained.

25 //

26 //

27 1 Attorney General Sessions assumed office on February 9, 2017, thereby replacing Acting
28 Attorney General Dana J. Boente as a defendant, pursuant to Fed. R. Civ. P. 25(d).

First Amended Complaint; Case No. 3:17-cv-00485-WHO 4

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1

FACTUAL ALLEGATIONS

2 I. SAN FRANCISCO’S SANCTUARY CITY LAWS

3

21. San Francisco has been a Sanctuary City since 1989. In the 1980s, thousands of Central

4 American refugees fled countries in the midst of violent civil wars to seek legal protection in the

5 United States. Against the backdrop of this humanitarian crisis, San Francisco began enacting the

6 ordinances that, as later amended, make up San Francisco’s Sanctuary City laws.

7

22. Numerous other municipalities have also enacted Sanctuary City laws. Although the

8 details of their ordinances differ, all of these jurisdictions have adopted laws or policies that limit

9 using local resources to implement and enforce federal immigration laws.

10

23. Today, San Francisco’s body of Sanctuary City law is contained in two chapters of

11 San Francisco’s Administrative Code: Chapters 12H and 12I. Importantly, these chapters do not

12 protect criminals or prevent people from being prosecuted for illegal acts. Instead, they protect

13 children by ensuring that their parents feel safe taking them to playgrounds, to schools, and to

14 hospitals. They support family stability and community engagement. And they protect the safety and

15 health of all residents of San Francisco by helping to ensure that everyone, including undocumented

16 immigrants, feels safe reporting crimes, cooperating with police investigations, and seeking medical

17 care.

18

24. San Francisco Administrative Code Chapter 12H—the full text of which is attached as

19 Exhibit 1—prohibits San Francisco departments, agencies, commissions, officers, and employees from

20 using San Francisco funds or resources to assist in the enforcement of Federal immigration law or to

21 gather or disseminate information regarding the release status, or other confidential identifying

22 information, of an individual unless such assistance is required by Federal or state law.

23

25. Chapter 12H previously prohibited disseminating information regarding the

24 immigration status of any individual, but the Board of Supervisors amended Chapter 12H in July 2016

25 to, inter alia, delete that prohibition in order to ensure compliance with Section 1373.

26

26. San Francisco Administrative Code Chapter 12I—the full text of which is attached as

27 Exhibit 2—prohibits San Francisco law enforcement officials from detaining an individual who is

28 //

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1 otherwise eligible for release from custody on the basis of a civil immigration detainer request issued 2 by the Federal government.2

3

27. A detainer request is distinct from a criminal warrant, which San Francisco honors

4 consistent with its Sanctuary City laws. A detainer request is not issued by a judge based on a finding

5 of probable cause. It is simply a request by ICE that a state or local law enforcement agency hold

6 individuals after their release date to provide ICE agents extra time to decide whether to take those

7 individuals into federal custody and then deport them.

8

28. Complying with detainer requests requires municipalities to commit scarce law

9 enforcement personnel and resources to track and respond to requests, detain individuals in holding

10 cells, and supervise and feed individuals during the prolonged detention. And the Federal government

11 has made clear that the local agency bears the financial burden of the detention, providing that “[n]o

12 detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal

13 obligation on the part of the Department.” 8 C.F.R. § 287.7(e).

14

29. Further, complying with civil immigration detainer requests, in the absence of a

15 probable cause determination, violates the Fourth Amendment to the United States Constitution and

16 could subject San Francisco to civil liability. See Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir.

17 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also

18 Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to

19 immigration arrests).

20

30. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

21 a federal immigration officer’s request for advance notification of the date and time an individual in

22 San Francisco’s custody is being released, unless the individual in question meets certain criteria. See

23 S.F. Admin. Code § 12I.3(c), (d).

24 2 Section 287.7 of Title 8 of the Code of Federal Regulations allows ICE to issue detainer
25 requests to local jurisdictions. Section 287.7 provides that such a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that
26 agency, for the purpose of arresting and removing the alien.” Subsection (d) provides that “[u]pon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal
27 justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the
28 Department.”

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1

31. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall

2 not arrest or detain an individual, or provide any individual’s personal information to a federal

3 immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil

4 immigration document based solely on alleged violations of the civil provisions of immigration laws.”

5 See Section 12I.3(e). “Personal information” is defined as “any confidential, identifying information

6 about an individual, including, but not limited to, home or work contact information, and family or

7 emergency contact information.” See Section 12I.2.

8

32. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to

9 federal civil immigration detainers, notification of release of individuals, transmission of personal

10 information, or civil immigration documents, based solely on alleged violations of the civil provisions

11 of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement

12 agencies may continue to collaborate with federal authorities to protect public safety.” See Section

13 12I.4.

14

33. San Francisco’s Sanctuary City laws arise from San Francisco’s commitment and

15 responsibility to ensure public safety and welfare. The Board of Supervisors, as San Francisco’s

16 legislative body, found that public safety is “founded on trust and cooperation of community residents

17 and local law enforcement.” Section 12I.1. Citing a study by the University of Illinois, which found

18 that at least 40% of Latinos surveyed were less likely to provide information to police because they

19 feared exposing themselves, family, or friends to a risk of deportation, the Legislature stated that “civil

20 immigration detainers and notifications regarding release undermine community trust of law

21 enforcement by instilling fear in immigrant communities of coming forward to report crimes and

22 cooperate with local law enforcement agencies.” Id.; see also id. (“The City has enacted numerous

23 laws and policies to strengthen communities and to build trust between communities and local law

24 enforcement. Local cooperation and assistance with civil immigration enforcement undermines

25 community policing strategies.”). Indeed, a recent study shows that crime is statistically significantly

26 lower in sanctuary counties compared to non-sanctuary counties. See Tom K. Wong, The Effects of

27 Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017),

28

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1 https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-

2 ofsanctuary-policies-on-crime-and-the-economy/.

3

34. The legislative findings set forth in Chapter 12I evidence the legitimate local purpose of

4 San Francisco’s Sanctuary City laws. For example, the Legislature declared:

5

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

6

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

7

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

8

cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure

9

community security, and due process for all. (See Section 12I.2.)

10

35. The Board of Supervisors also had a public health purpose for its decision to restrict

11 disclosure of confidential information: “To carry out public health programs, the City must be able to

12 reliably collect confidential information from all residents . . . . Information gathering and cooperation

13 may be jeopardized if release of personal information results in a person being taken into immigration

14 custody.” Section 12I.1.

15

36. Finally, the Board of Supervisors determined that enforcing immigration detainer

16 requests would require San Francisco to redirect scarce local law enforcement personnel and

17 resources—noting that the costs of “responding to a civil immigration detainer can include, but [are]

18 not limited to, extended detention time, the administrative costs of tracking and responding to

19 detainers, and the legal liability for erroneously holding an individual who is not subject to a civil

20 immigration detainer.” Id. In short, the Board of Supervisors concluded that “[c]ompliance with civil

21 immigration detainers and involvement in civil immigration enforcement diverts limited local

22 resources from programs that are beneficial to the City.” Id.

23

37. San Francisco departments have adopted and implemented policies consistent with

24 Chapters 12H and 12I.

25

38. California law incorporates local Sanctuary City laws such as Chapters 12H and 12I.

26 The TRUST Act states that local law enforcement officials may comply with ICE detainer requests

27 only if (1) the continued detention would not violate any federal, state, or local law, or any local

28 policy, and (2) the defendant’s criminal history meets specified conditions. Cal. Gov’t Code §§ 7282,

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1 7282.5. Thus, because in San Francisco ICE detentions are prohibited under local law, they are also

2 prohibited under state law.

3 II. 4 5

SECTION 1373
A. San Francisco Complies With Section 1373 By Not Prohibiting Its Employees From Sharing “Citizenship Or Immigration Status” Information With The Federal Government.

6

39. Section 1373 provides that a “local government entity or official may not prohibit, or in

7 any way restrict, any government entity or official from sending to, or receiving from, [federal

8 immigration officials] information regarding the citizenship or immigration status . . . of any

9 individual.” 8 U.S.C. § 1373(a). This restriction exclusively regulates government entities.

10

40. Section 1373 requires San Francisco to allow its employees to use city resources,

11 including San Francisco tax dollars, to respond to requests for information about citizenship and

12 immigration status.

13

41. San Francisco complies with Section 1373.

14

42. Nothing in San Francisco Administrative Code Chapters 12H or 12I limits

15 communications regarding citizenship or immigration status in any way.

16

43. And, indeed, under ICE’s recently restored Secure Communities program (also known

17 as “S-Comm”), whenever an individual is taken into custody, the person is digitally fingerprinted and

18 those fingerprints are sent to the California Department of Justice and ultimately the FBI. The FBI

19 forwards the fingerprints to DHS, which allows ICE to determine the immigration status of everyone

20 in San Francisco custody.

21

44. Under Chapter 12I and the TRUST Act, San Francisco does not enforce detainer

22 requests (see ¶26, supra), and does not respond to notification requests from the Federal government

23 unless certain conditions are met (see ¶30, supra). But compliance with such requests is not required

24 by Section 1373, which speaks only to communications regarding citizenship and immigration status.

25

45. San Francisco has affirmatively instructed personnel regarding the substance of Section

26 1373 in a recent memorandum to all San Francisco employees from the San Francisco Human

27 Resources Director.

28 //

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1

46. The San Francisco Board of Supervisors is currently considering a proposed ordinance

2 that would prohibit San Francisco officers and employees from using San Francisco resources to assist

3 with the creation or enforcement of any registry of individuals on the basis of religious affiliation,

4 national origin, or ethnicity. See San Francisco Board of Supervisors, Board File No. 170092, S.F.

5 Admin. Code – Non-Cooperation with Identity-Based Registry, introduced January 24, 2017, last

6 amended February 22, 2017. The proposed ordinance specifically exempts from its scope

7 communications about citizenship or immigration status authorized by Section 1373, and allows those

8 communication until a court of competent jurisdiction declares Section 1373 unconstitutional.

9 Findings for the proposed ordinance explain that it is San Francisco’s position that Section 1373 is

10 unconstitutional, but that San Francisco will continue to comply with Section 1373 until it obtains

11 Court relief.

12

B. The United States Improperly Interprets Section 1373 To Require Compliance

With Detainer Requests. 13

14

47. On May 31, 2016, in response to a request from the Office of the Attorney General, the

15 Office of the Inspector General (“OIG”) of the Department of Justice issued a memorandum (“OIG

16 Memo”) regarding potential violations of Section 1373 by recipients of funding from the Edward

17 Byrne Memorial Justice Assistance Grant Program (“JAG”). Memorandum from Michael E.

18 Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs,

19 Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant

20 Recipients (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.3

21

48. In analyzing the local laws and policies of ten selected state and local jurisdictions, OIG

22 demonstrated how the Federal government interprets Section 1373.

23

49. Although Section 1373 does not expressly address immigration detainers, OIG

24 expressed concern that local laws concerning the handling of detainer requests “may have a broader

25 practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore,

26 3 The authorizing legislation for the JAG program requires that all grant applicants certify
27 compliance with the provisions of the authorizing legislation and all other “applicable federal laws.” 42 U.S.C. § 3750 et seq. The U.S. Department of Justice, Office of Justice Programs has recently
28 announced that Section 1373 is an “applicable” law under the JAG authorizing legislation.

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1 be inconsistent with at least the intent of Section 1373.” OIG Memo at 7. It went on to state that local

2 laws and policies that “purport to be focused on civil immigration detainer requests [and say nothing

3 about sharing immigration status with ICE] . . . may nevertheless be affecting ICE’s interactions with

4 the local officials regarding ICE immigration status requests.” Id.

5

50. OIG also stated that such immigration detainer request policies “may be causing local

6 officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE

7 in all respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id.

8 at 8.

9

51. In the OIG Memo, the Federal government also endorses the view that local

10 jurisdictions hinder the enforcement of Federal immigration law if they do not honor detainer requests

11 or if they place any other limitations on cooperation with ICE. See, e.g., id. at 4 (stating that even

12 though Section 1373 does not specifically address restrictions by state or local entities on cooperation

13 with ICE regarding detainers, “[a] primary and frequently cited indicator of limitations placed on

14 cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction

15 handles immigration detainer requests issued by ICE”).

16

52. Yet, San Francisco cannot lawfully comply with ICE detainer requests. Complying with

17 civil immigration detainer requests, in the absence of a determination of probable cause, would violate

18 the Fourth Amendment to the United States Constitution and could subject San Francisco to civil

19 liability for this harm. See Arizona v. United States, 132 S. Ct. 2492, 2509 (2012) (noting that

20 “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns”);

21 Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty.,

22 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th

23 Cir. 2012) (applying the Fourth Amendment to immigration arrests).

24

53. In the OIG Memo, OIG recommended that the U.S. Department of Justice, Office of

25 Justice Programs (“OJP”) provide JAG recipients clear guidance on their obligation to comply with

26 Section 1373 and require them to certify that they comply with that section. See OIG Memo at 9.

27

54. In response to these recommendations, in July and October 2016 OJP issued guidance

28 regarding compliance with Section 1373. See Office of Justice Programs, Guidance Regarding

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1 Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST. (July 7, 2016) (“OJP July Guidance”); Office of

2 Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST.

3 (October 6, 2016) (“OJP October Guidance”).

4

55. In the OJP July Guidance, OJP reads Section 1373 to impose an affirmative obligation

5 on state and local governments. The Guidance states that to comply with Section 1373, “[y]our

6 personnel must be informed that notwithstanding any state or local policies to the contrary, federal law

7 does not allow any government entity or official to prohibit the sending or receiving of information

8 about an individual’s citizenship or immigration status with any federal, state or local government

9 entity and officials.” OJP July Guidance at 1 (emphasis added). Accordingly, OJP reads into the law

10 an affirmative obligation to instruct personnel regarding the substance of Section 1373.

11

56. In the October 2016 Guidance, OIG stated that all JAG applicants must comply with—

12 and certify their compliance with—Section 1373. OJP October Guidance at 1.

13

57. As a subgrantee of a JAG grant, San Francisco is required to certify its compliance with

14 Section 1373.

15 III. THE EXECUTIVE ORDER

16

A. The Executive Order Cuts Off Federal Funding From Sanctuary Jurisdictions

And Directs Enforcement Action Against Them. 17

18

58. On January 25, 2017, President Donald J. Trump issued the Executive Order attached

19 as Exhibit 3.

20

59. The Executive Order declares, “Sanctuary jurisdictions across the United States

21 willfully violate Federal law in an attempt to shield aliens from removal from the United States. These

22 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

23 Republic.” Executive Order at 8799.

24

60. To address the purported harm caused by Sanctuary Cities, the Executive Order

25 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not receive

26 Federal funds, except as mandated by law.” Id.

27 //

28 //

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1

61. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

2 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a

3 State, shall comply with 8 U.S.C. 1373.” Id. at 8801.

4

62. Section 9(a) of the Executive Order establishes a funding restriction (the “Funding

5 Restriction”):

6

In furtherance of this policy, the Attorney General and the Secretary, in their discretion

7

and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

8

Federal grants, except as deemed necessary for law enforcement purposes by the

Attorney General or the Secretary. The Secretary has the authority to designate, in his

9

discretion and to the extent consistent with law, a jurisdiction as a sanctuary

jurisdiction. 10

11 Id.

12

63. Section 9(a) of the Executive Order also mandates enforcement action (the

13 “Enforcement Directive”):

14 15 16 Id.

The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

17

64. Section 9(a) of the Executive Order defines “sanctuary jurisdictions” as those

18 jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” But Section 9(b) indicates that

19 Defendants in fact define that category quite broadly as including any jurisdiction that declines to

20 comply with ICE detainer requests:

21 To better inform the public regarding the public safety threats associated with

22

sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer

Outcome Report or its equivalent and, on a weekly basis, make public a

23

comprehensive list of criminal actions committed by aliens and any jurisdiction

that ignored or otherwise failed to honor any detainers with respect to such

24

aliens.

25

65. The Executive Order thus attempts to mandate compliance with detainer requests as

26 part of Section 1373 compliance, with the consequence that a jurisdiction such as San Francisco that

27 does not comply with ICE detainer requests will lose federal funds under the Executive Order.

28 //

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1

66. A jurisdiction that fails to comply with detainer requests also faces enforcement action

2 under Section 9(a)’s Enforcement Provision. As discussed further below, Defendants view the local

3 decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or

4 hinders the enforcement of Federal law.”

5

B. Defendants Have Labeled San Francisco A Sanctuary Jurisdiction Within The

Meaning Of The Executive Order.

6

7

67. As discussed above, San Francisco does comply with Section 1373, properly construed.

8 Nonetheless, Defendants deem San Francisco a sanctuary jurisdiction pursuant to their overly broad

9 definition of that term.

10

68. If there were any question about whether Defendants deem San Francisco as a

11 “sanctuary jurisdiction,” that question is answered by Defendants’ own statements, which clearly

12 characterize San Francisco as a Sanctuary City.

13

69. For example, in a written campaign speech, then-candidate Donald J. Trump gave in

14 Phoenix, Arizona on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City. See

15 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

16 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration (“Another

17 victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant

18 deported five previous times.”).

19

70. Further, Defendants have repeatedly identified Sanctuary Cities, and specifically

20 San Francisco, as those that decline detainer requests and otherwise do not affirmatively support

21 federal immigration enforcement.

22

• In statements to the Daily Caller on July 7, 2015, Congressman Darrell Issa and

23

now-Attorney General Sessions criticized San Francisco and other sanctuary

24

jurisdictions for failing to honor detainers. Sessions stated, “This disregarding of

25

detainers and releasing persons that ICE has put a hold on—it goes against all

26

traditions of law enforcement. Laws and courtesies within departments— if you

27

have somebody charged with a crime in one city, you hold them until you complete

28

your business with them . . . . So what was happening was, ICE authorities were

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1

filing detainers and sanctuary cities were saying, ‘We’re not gonna honor them.

2

They finished paying for the crime they committed in our city— we’ve released

3

them.’” Kerry Picket, Sen. Sessions: City Officials Harboring Illegal Immigrant

4

Felons Could Be Charged with Crime, Daily Caller (July 7, 2015, 10:07 PM),

5

http://dailycaller.com/2015/07/07/sen-sessions-city-officials-harboring-illegal-

6

immigrant-felons-could-be-charged-with-crime/#ixzz4XE9I12Ux.

7

• On July 8, 2015, Sessions gave a speech to Congress describing San Francisco as “a

8

jurisdiction that is known to release illegal immigrants back into the public,” and

9

one which refused to “honor” a detainer sought by federal authorities. News

10

Release, Office of Senator Jeff Sessions, Senator Sessions Calls on Congress To

11

Take Up Immigration Reform for Americans (July 9, 2015),

12

http://www.sessions.senate.gov/public/index.cfm/news-releases?ID=B7A98B63-

13

8ECA-4A4E-B5C8-4A665F2343DE.

14

• In an interview with Breitbart News in May 2016, then-candidate Donald J. Trump

15

stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and

16

people that should not have a safe-haven in many cases. It’s just unacceptable.

17

We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive —

18

Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’

19

Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016),

20

http://www.breitbart.com/2016-presidential-race/2016/05/16/exclusive-donald-j-

21

trump-to-san-francisco-sanctuary-cities-unacceptable-a-disaster-creating-safe-

22

haven-for-criminals/. This Breitbart news report further stated that “Trump’s

23

comments . . . come in response to efforts by far left progressive organizations in

24

San Francisco to expand that city’s sanctuary city laws.” Id.

25

• Another Breitbart News article published on November 21, 2016 regarding

26

Sanctuary Cities quoted Texas Republican Congressman John Culberson as stating,

27

“The law requires cooperation with immigration officials 100 percent of the time.”

28

Bob Price, Sanctuary Cities Risk Losing DOJ Funds in 2017, Texas Congressman

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1

Says, Breitbart News (Nov. 21, 2016),

2

http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds-

3

2017-texas-congressman-says/.

4

71. Defendants have also repeatedly stated their intent to strip federal funding from

5 Sanctuary Cities.

6

 In a statement by White House Press Secretary Sean Spicer on January 25, 2017

7

announcing the issuance of the Executive Order, Spicer stated, “We are going to

8

strip federal grant money from the sanctuary states and cities that harbor illegal

9

immigrants. The American people are no longer going to have to be forced to

10

subsidize this disregard for our laws.” White House, 1/25/17: White House Press

11

Briefing, YouTube (Jan. 25, 2017),

12

https://www.youtube.com/watch?v=OaPriMVvtZA.

13

 A press release from the Office of the Press Secretary for the White House issued

14

on January 28, 2017 detailing President Trump’s First Week of Action, reads in

15

relevant part: “President Trump signed an executive order to ensure that

16

immigration laws are enforced throughout the United States, including halting

17

federal funding for sanctuary cities.” Press Release, The White House, Office of the

18

Press Secretary, President Trump’s First Week of Action (Jan. 28, 2017),

19

https://www.whitehouse.gov/the-press-office/2017/01/28/president-trumps-first-

20

week-action.

21

 Press Secretary Sean Spicer reiterated this goal on February 1, 2017, stating “I think

22

the President’s goal in ending sanctuary cities is pretty clear. . . . [T]he President

23

has been very clear through his executive order that federal funds, paid for by

24

hardworking taxpayers, should not be used to help fund sanctuary cities.” Press

25

Release, The White House, Office of the Press Secretary, Press Briefing by Press

26

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017),

27

https://www.whitehouse.gov/the-pressoffice/2017/02/01/press-briefing-press-

28

secretary-sean-spicer-212017-6.

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1

72. Indeed, Defendants have explicitly stated their intent to use federal funding cuts as a

2 “weapon” against Sanctuary Cities, in an attempt to coerce jurisdictions to bend to their will.

3

 In an interview with Bill O’Reilly on February 5, 2017, President Trump called the

4

efforts of California lawmakers to propose legislation that could stop state police and

5

sheriffs from enforcing federal immigration laws “ridiculous.” Alexander Mallin and

6

Lissette Rodriguez, Trump Threatens Defunding Sanctuary States as 'Weapon', ABC

7

News (Feb. 5, 2017, 6:01 PM), http://abcnews.go.com/Politics/trump-threatens-

8

defunding-sanctuary-states-weapon/story?id=45286642. He stated: “I don't want to

9

defund anybody. I want to give them the money they need to properly operate as a

10

city or a state.” But he said, “If they’re going to have sanctuary cities, we may have

11

to do that. Certainly that would be a weapon.” Id. “Sanctuary cities, as you know I’m

12

very much opposed to sanctuary cities -- they breed crime, there’s lots of problems.”

13

Id. “We give tremendous amounts of money to California,” Trump said. “Obviously

14

the voters agree or otherwise they wouldn't have voted for me.” Id.

15

 When asked at a press briefing whether Cincinnati would face sanctions for voting to

16

become a Sanctuary City, Sean Spicer, the President’s press secretary stated:

17

As I’ve noted before, at the end of the day, this order is about two

things: one, keeping our cities safe, and two, respecting the hard-

18

earned taxpayers who send their money to the federal government.

And the President is going to do everything he can within the scope

19

of the executive order to make sure that cities who don’t comply

with it -- counties and other institutions that remain sanctuary cities

20

don’t get federal government funding in compliance with the

executive order. I think more areas like Miami-Dade, down in

21

Florida, understand the importance of this order, and we hope cities

like Cincinnati and other communities around the country follow

22

their lead and comply with that.

23

Press Release, The White House, Office of the Press Secretary, Press Briefing by

24

Press Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017),

25

https://www.whitehouse.gov/the-press-office/2017/02/08/press-briefing-press-

26

secretary-sean-spicer-282017-10.

27 //

28 //

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1

73. The White House’s public website states that President Trump “is dedicated to

2 enforcing our border laws, ending sanctuary cities, and stemming the tide of lawlessness associated

3 with illegal immigration.” Standing Up For Our Law Enforcement Community, The White House,

4 https://www.whitehouse.gov/law-enforcement-community (last visited on Feb. 27, 2017) (emphasis

5 added).

6

74. Defendants’ statements demonstrate their belief that Sanctuary Cities, like

7 San Francisco, violate Section 1373 and their intent that Sanctuary Cities will lose federal funding—

8 apparently all or almost all federal funding—and be subject to enforcement action under the Executive

9 Order.

10

75. There is a “credible threat” that Defendants will seek to enforce the unconstitutional

11 Executive Order against San Francisco.

12 IV. SECTION 1373 AND THE EXECUTIVE ORDER HARM SAN FRANCISCO

13

A. Constitutional Injury

14

1. Section 1373(a) Violates The Tenth Amendment.

15

76. Congress may not command States to provide the Federal government with information

16 “that only state officials have access to.” Printz v. United States, 521 U.S. 898, 932 n.17 (1997). The

17 Federal government must not regulate its fellow governments in their capacities as governments.

18

77. Yet, that is exactly what Section 1373(a) does. Section 1373(a) unconstitutionally

19 regulates “States in their sovereign capacity.” Reno v. Condon, 528 U.S. 141, 151 (2000). It

20 necessarily regulates governments in their capacities as governments. It does not “subject state

21 governments to generally applicable laws.” New York v. U.S., 505 U.S. 144, 160 (1992). On the

22 contrary, in every possible application, it targets “government entit[ies] or official[s]” for special

23 treatment. 8 U.S.C. § 1373(a).

24

78. Also, Section 1373(a) targets government entities’ and officials’ authority to control

25 their subordinates—an authority at the heart of a government’s existence as a government. “[A] State

26 can act only through its officers and agents.” Nevada v. Hicks, 533 U.S. 353, 365 (2001). “Through the

27 structure of its government, and the character of those who exercise government authority, a State

28 defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

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1

79. By preventing state and local governments from directing employees how to handle

2 information about citizenship and immigration status, Section 1373 makes it impossible for local

3 jurisdictions to freely choose and to clearly establish how they will handle this information. Under

4 Section 1373, San Francisco cannot command its government officials and employees never to share

5 citizenship or immigration information. Yet Congress has no power “to require the States to govern

6 according to Congress’ instructions.” New York, 505 U.S. at 162.

7

80. Section 1373 mandates uncertainty where Sanctuary City laws seek to provide

8 certainty. Because of Section 1373, San Francisco cannot tell the public that it will never share

9 information about citizenship or immigration status. Any attempt to impose a uniform rule is fettered

10 by the individual discretion of over 30,000 employees and officials. This is not the way San Francisco

11 chooses to govern. It is chaos imposed by the Federal government.

12

81. Through its Sanctuary City laws, policies, and practices, San Francisco has sought to

13 distinguish local law enforcement officers from federal immigration enforcement officers in order to

14 encourage local government accountability and public confidence in local law enforcement. As

15 applied against these local governance efforts, Section 1373 would violate a core principle underlying

16 the Tenth Amendment, namely, the accountability of state and Federal government officials to their

17 electorates. See Printz, 521 U.S. at 929–30.

18

82. Defendants’ broader interpretation of Section 1373—to require compliance with

19 “voluntary” ICE detainer requests—implicates additional constitutional injury. This interpretation

20 would affirmatively require San Francisco to use local resources to detain and hold people without

21 probable cause, in violation of both the Fourth and Tenth Amendments.

22

2. The Executive Order Violates The Tenth Amendment, Separation Of Powers, And The Spending Clause.

23

a. The Executive Order Funding Restriction Is Unconstitutional.

24

i. Tenth Amendment

25

83. To the extent the Executive Order’s Funding Restriction incorporates Section 1373(a),

26 it is invalid for all of the reasons described above. The Funding Restriction is also unconstitutional for

27 the additional reasons described below.

28 //

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1

ii. Separation of Powers

2

84. As a threshold matter, the Funding Restriction purports to exercise Spending Power that

3 Article I, Section 8 of the Constitution grants exclusively to Congress.

4

85. The Executive Order violates the separation of powers by creating a penalty for Section

5 1373 that Congress did not authorize, without regard to statutory rules on grant programs put in place

6 by Congress. The Executive Order effectively legislates a sanction for violations of Section 1373 by

7 using the statute as a basis to broadly deny federal grants to municipalities that have made a policy

8 decision to focus law enforcement resources on local problems and limit their entanglement with

9 federal immigration enforcement. The President’s unilateral imposition of this new sanction and

10 condition on spending is not supported by any act of Congress, including the Immigration and

11 Nationality Act, 8 U.S.C. § 1101 et seq., or by the Constitution.

12

86. The Funding Restriction additionally violates the separation of powers by imposing a

13 new restriction on jurisdictions’ eligibility to receive federal funds: “jurisdictions that willfully refuse

14 to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,

15 except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”

16 Executive Order at 8801.

17

87. The President may not unilaterally impose new restrictions on jurisdictions’ eligibility

18 for federal funding. Any restriction on eligibility for federal funds must be imposed—clearly,

19 unambiguously, and in advance—by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

20 1, 17 (1981). When Congress has not imposed such a restriction by statute, the President may not do

21 so by fiat. The President does not have “unilateral power to change the text of duly enacted statutes.”

22 Clinton v. City of New York, 524 U.S. 417, 447 (1998).

23

88. Congress has spoken to reject the imposition of such funding restrictions, including

24 when it declined to enact Senate Bill 1842, “Protecting American Lives Act,” introduced in July 2015

25 by then-Senator Attorney General Jeff Sessions. The bill would in part have expanded Section 1373 to

26 deprive jurisdictions having “in effect a statute, policy, or practice that prohibits law enforcement

27 officers of the State, or of a political subdivision of the State, from assisting or cooperating with

28 Federal immigration law enforcement in the course of carrying out the officers’ routine law

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1 enforcement duties” of “any . . . law enforcement or Department of Homeland Security grant.” S.

2 1842, 114th Cong. § 3 (2015). Senate Bill 1842 did not make it out of committee, nor did the identical

3 House of Representatives Bill 3437. Where the President “takes measures incompatible with

4 the expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube

5 Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

6

89. By imposing conditions or limitations on federal spending without express statutory

7 authority, the Executive Order also unlawfully exceeds the President’s powers under other provisions

8 of the Constitution that establish the separation of powers among the branches of our government,

9 including: (i) the President’s obligation to “take Care that the Laws be faithfully executed,” U.S.

10 Const. art. II, § 3, cl. 5 (Take Care Clause), and (ii) the limitation that Congressional enactments must

11 “be presented to the President of the United States,” who then may sign that enactment or veto it, but

12 has no power to merely revise it, either upon presentment or after enactment, U.S. Const. art. I, § 7,

13 cls. 2-3 (Presentment Clause).

14

iii.

Spending Clause

15

90. Further, the Funding Restriction purports to exercise Spending Power in ways that even

16 Congress could not.

17

91. The Funding Restriction violates the Spending Clause by imposing new funding

18 conditions on existing appropriations of federal funds. “[I]f Congress intends to impose a condition on

19 the grant of federal moneys, it must do so unambiguously,” in advance. Pennhurst, 451 U.S. at 17.

20 “The legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the

21 State voluntarily and knowingly accepts” Congress’s conditions. Id. “There can, of course, be no

22 knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of

23 it.” Id.

24

92. The Funding Restriction also violates the Spending Clause by imposing funding

25 conditions that are not germane to the purpose of the funds. “[T]he imposition of conditions under the

26 spending power” must be “germane” or “related” to the purpose of federal funding. South Dakota v.

27 Dole, 483 U.S. 203, 208-09 & n.3 (1987); see also Massachusetts v. United States, 435 U.S. 444, 461

28 (1978). Here, the Funding Restriction conditions eligibility for federal funding on compliance with

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1 Section 1373, without regard for whether Section 1373 is germane to any federal funds at issue. In

2 fact, the Funding Restriction specifically exempts those federal funds—funds “deemed necessary for

3 law enforcement purposes”—that might arguably be germane to Section 1373.

4

93. The Funding Restriction also imposes conditions so severe that they “cross[] the line

5 distinguishing encouragement from coercion.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

6 2603 (2012) (opinion of Roberts, C.J.); New York v. United States, 505 U.S. 144, 175 (1992). The

7 Funding Restriction “is much more than ‘relatively mild encouragement’—it is a gun to the head.”

8 Sebelius, 132 S. Ct. at 2604 (opinion of Roberts, C.J.). The Funding Restriction threatens a substantial

9 percentage of San Francisco’s overall budget—approximately 13% of its total annual operating

10 budget, even without considering federal multi-year grants. Threatened funds include the entire

11 funding stream for programs, such as Medicaid, that are critical to the lives of San Francisco’s

12 residents. Threats of this magnitude, and to such critical programs, constitute “economic dragooning

13 that leaves the States with no real option but to acquiesce” to federal dictates. Id. at 2605.

14

94. Finally, because Defendants interpret Section 1373 to require jurisdictions to comply

15 with immigration detainers, the Funding Restriction imposes a new funding condition that requires

16 jurisdictions to act unconstitutionally. Under the Fourth Amendment, detention of an individual must

17 be supported by a determination of probable cause. See Morales v. Chadbourne, 793 F.3d 208, 215–17

18 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014).

19 Requiring state and local governments (including San Francisco) to establish blanket policies of

20 compliance with immigration detainers could thus cause them to violate the Fourth Amendment. But

21 Congress’s Spending Power “may not be used to induce the States to engage in activities that would

22 themselves be unconstitutional.” Dole, 483 U.S. at 210.

23

95. This concern is heightened by the fact that state and local governments, including

24 San Francisco, generally lack authority to make warrantless arrests under the Federal government’s

25 civil immigration laws. See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). It is further

26 heightened by the prospect that “ICE’s issuance of detainers that seek to detain individuals without a

27 warrant goes beyond its statutory authority to make warrantless arrests.” Moreno v. Napolitano, No.

28 11-C-5452, 2016 WL 5720465, at *8 (N.D. Ill. Sept. 30, 2016).

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1

96. For all these reasons, the Funding Restriction violates the Constitution’s separation of

2 powers (and, in particular, the Constitution’s grant of legislative power to Congress in Article I,

3 Section 1); the Spending Clause of Article I, Section 8; and the Tenth Amendment.

4

b. The Executive Order Enforcement Directive Is Unconstitutional.

5

97. The Executive Order’s Enforcement Directive violates the Tenth Amendment. The

6 Enforcement Directive commandeers state and local governments by, inter alia, compelling them to

7 enforce federal law under threat of legal action.

8

98. The Enforcement Directive mandates that “[t]he Attorney General shall take

9 appropriate enforcement action against any entity that violates 8 U.S.C. 1373.” Executive Order at

10 8801. As discussed above, Defendants interpret Section 1373 to require jurisdictions to comply with

11 immigration detainers.

12

99. The Enforcement Directive also mandates “enforcement action against any entity

13 that . . . has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

14 law.” Executive Order at 8801. As discussed above, Defendants interpret a state or local government’s

15 decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or

16 hinders the enforcement of Federal law.”

17

100. The Enforcement Directive thus mandates that the Attorney General take enforcement

18 action against state and local governments that do not detain individuals at the behest of the Federal

19 government.

20

101. Compelling state and local governments to detain individuals at the behest of the

21 Federal government violates the Tenth Amendment. “[T]he Federal Government may not compel the

22 States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United

23 States, 521 U.S. 898, 925 (1997). To “command state or local officials to assist in the implementation

24 of federal law” is to engage in impermissible commandeering. Id. at 927.

25

B. Community Injury

26

102. The Executive Order fosters an atmosphere of fear and distrust between undocumented

27 immigrants and local government officials in San Francisco. Its sweeping terms, combined with recent

28 ICE activity in San Francisco, and compounded by the Trump administration’s statements about

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1 immigration enforcement, have generated a maelstrom of fear and confusion that San Francisco

2 agencies have had to move quickly to contain.

3

103. The Executive Order is designed to—and does—create public confusion about whether

4 San Francisco is and will remain a Sanctuary City, and what that means.

5

104. San Francisco has been forced to spend resources to counteract the effect of the

6 Executive Order. Since the Executive Order issued, San Francisco officials and employees have

7 responded to questions from San Francisco departments, non-profit partners, and members of the

8 public about topics such as whether the Executive Order modifies ICE’s authority to enter public

9 facilities, jails, and residences; whether individuals’ personal identifying information on applications

10 for benefit programs remains protected; and whether the Executive Order changes the way

11 San Francisco law enforcement officers interact with ICE. San Francisco departments have held

12 numerous meetings discussing the impact of the Executive Order and have developed new educational

13 materials about San Francisco Chapters 12H and 12I.

14

105. Given the Executive Order’s broad language, even San Francisco’s extensive and

15 ongoing efforts to offer clear answers leave the public far from reassured.

16

106. By heightening undocumented immigrants’ concerns that any interaction with

17 San Francisco officials will lead to their information being turned over to ICE, the Executive Order

18 discourages undocumented immigrants from reporting crimes, seeking public health services, and

19 otherwise engaging with San Francisco programs and services. This threat harms public safety, public

20 health, and San Francisco’s ability to act in what San Francisco has determined to be the best interest

21 of its residents, consistent with federal and state law.

22

107. The Executive Order undermines San Francisco’s ability to provide critical services not

23 just to undocumented immigrants, but to all residents. When witnesses and crime victims will not talk

24 to the police, law enforcement suffers and the entire community is less safe. When children are not

25 vaccinated or the sick are not treated for communicable diseases, illness spreads throughout the

26 community.

27 //

28 //

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1

108. As a result, the Executive Order causes the very harms San Francisco’s Sanctuary City

2 laws were designed to prevent. The Executive Order destroys rather than “foster[s] respect and trust

3 between law enforcement and residents,” wastes rather than “protect[s] limited local resources,” and

4 discourages rather than “encourage[s] cooperation between residents and City officials, including

5 especially law enforcement and public health officers and employees.” S.F. Admin. Code § 12I.1.

6

C. Budgetary Injury

7

1. San Francisco Relies On Federal Funding For Essential Public Services.

8

109. San Francisco is home to about 865,000 residents and has a total daytime population of

9 about 1,250,000. People who live in, work in or visit San Francisco rely on—in addition to other

10 public services—law enforcement provided by the San Francisco Police Department; public

11 infrastructure projects such as roads, bridges and public transit; and the availability of high quality

12 emergency care from San Francisco General Hospital. Residents also rely on public health programs

13 such as Medi-Cal and public assistance programs like CalWORKS. While San Francisco has

14 benefitted from a recent economic boom, over 12% of San Franciscans live in poverty, and depend on

15 public assistance to make ends meet and put food on the table.

16

110. San Francisco contributes disproportionately to national economic growth and job

17 creation. Between 2010 and 2015, San Francisco ranked second among all U.S. counties in percentage

18 change in employment, generating over 125,000 new jobs, a growth rate of 28%. A significant portion

19 of this growth has been in the technology sector, a source of high wage jobs with important multiplier

20 effects and potential for future growth.

21

111. The State of California, including San Francisco, pays more to the Federal government

22 in taxes than it receives in federal spending. In 2014, California residents and businesses paid a total of

23 $369.2 billion in federal business and personal income, estate, gift, and excise taxes to the Internal

24 Revenue Services and were the beneficiaries of $355.8 billion in federal expenditures. California

25 ranked 38th among states in the ratio of federal spending to collections.

26

112. In turn, San Francisco relies on federal funding to provide essential services and build

27 and maintain public infrastructure projects.

28 //

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1

113. San Francisco budgets by a fiscal year that runs from July 1 to June 30. The current

2 fiscal year began July 1, 2016, and will end June 30, 2017 (“FY16-17”). The next fiscal year will run

3 from July 1, 2017 to June 30, 2018 (“FY17-18”).

4

114. San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in

5 federal funds. This is approximately 13% of the total annual operating budget.

6

115. On top of the federal funds allocated in the annual operating budget, San Francisco

7 expects to receive an additional $800 million in federal multi-year grants, largely for public

8 infrastructure projects.

9

116. The programs, projects, and services described below are just a few examples of how

10 San Francisco uses federal funds.

11

a. Human Services Agency

12

117. San Francisco’s Human Services Agency (“HSA”) provides critical services to

13 San Francisco’s most vulnerable residents. It works with over 200,000 residents each year to provide

14 needed nutrition assistance, income support, and child welfare services, among other support services.

15 Approximately one in four San Franciscans is a client of HSA. HSA also manages numerous programs

16 that serve young children and their families, older adults, and individuals with disabilities. HSA relies

17 on federal funding to provide these services.

18

118. For example, the In-Home Supportive Services (“IHSS”) program assists about 23,000

19 low-income elderly, disabled, or blind San Franciscans to live safely in their own homes and

20 communities. For some recipients, the IHSS program reduces acute health care and institutional long-

21 term care costs that would otherwise be incurred by the state and Federal governments through Medi-

22 Cal. About 19,000 individuals work as independent providers for IHSS recipients. For FY16-17, the

23 County’s IHSS program is budgeted to receive approximately $64 million in federal funds, accounting

24 for nearly 40% of the program’s budget. Virtually all of these funds are provided as reimbursements.

25 This amount does not include the approximately $200 million of federal funds that the State of

26 California pays directly to independent IHSS providers.

27

119. HSA also provides financial assistance and services to San Francisco’s neediest

28 residents, including children and families living in poverty. For example, through California Work

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1 Opportunity and Responsibility to Kids (CalWORKS), HSA provides financial assistance, family

2 stabilization, case management, vocational counseling, job readiness assistance, behavioral health

3 treatment, transportation, and other services designed to help parents of low-income families meet

4 welfare-to-work requirements, secure and retain employment, and become self-sufficient.

5 San Francisco’s CalWORKS program is budgeted to receive approximately $58 million in federal

6 funding in FY16-17, accounting for over 50% of the County’s CalWORKS and Welfare-to-Work

7 FY16-17 budget. Virtually all of these funds are provided as reimbursements.

8

120. HSA offers numerous other social services, including child welfare programs and

9 services, early childhood care and education services, adult protective services and a County Veteran’s

10 Service Office that helps veterans and their families receive benefits to which they are entitled.

11

121. In FY16-17, HSA expects to receive a total of approximately $286 million in federal

12 funding. This represents approximately 33% of its FY16-17 budget.

13

122. HSA directly employs nearly 2,000 employees. It also funds hundreds of additional

14 jobs through contracts to service providers. Loss of federal funds would threaten many of these jobs,

15 as well as the underlying services, that depend on HSA funds.

16

b. Department of Public Health

17

123. The Zuckerberg San Francisco General Hospital (“ZSFGH”) is a licensed general acute

18 care hospital owned and operated by San Francisco. ZSFGH has 284 beds and provides a full

19 complement of inpatient, outpatient, emergency, skilled nursing, diagnostic, mental health, and

20 rehabilitation services for adults and children. ZSFGH is the largest safety net provider in

21 San Francisco and is the designated trauma center for the 1.5 million residents of San Francisco and

22 northern San Mateo County. In FY16-17, ZSFGH expects to receive approximately $450 million in

23 federal funding for Medi-Cal and Medicare patient services. This accounts for over half of the ZSFGH

24 FY16-17 budget of nearly $840 million. Virtually all of these funds are provided as reimbursements.

25

124. Laguna Honda Hospital provides a full range of skilled nursing services to adult

26 residents of San Francisco who are disabled or chronically ill, including specialized care for those with

27 wounds, head trauma, stroke, spinal cord and orthopedic injuries, HIV/AIDS, and dementia. In FY16-

28 17, Laguna Honda Hospital expects to receive approximately $160 million in federal funding for

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1 Medi-Cal and Medicare patient services, accounting for nearly 60% of its budget. Virtually all of these

2 funds are provided as reimbursements.

3

125. The San Francisco Department of Public Health (“DPH”) also provides direct services

4 through its primary care clinics, HIV/AIDS health services, mental health and substance abuse

5 treatment, housing and homelessness assistance, maternal and child healthcare, and jail health

6 services.

7

126. Additionally, the DPH Population Health Division addresses public health concerns,

8 including consumer safety, health promotion, and disease prevention. DPH also monitors threats to

9 public health.

10

127. Overall, in FY16-17, DPH expects to receive approximately $800 million in federal

11 funding. This represents almost 40% of the Department’s FY16-17 budget.

12

128. DPH has approximately 6,800 full-time equivalent employees, and it funds hundreds of

13 additional jobs through contracts to service providers. Loss of federal funds would threaten many of

14 the thousands of jobs that depend on DPH funds.

15

c. Department of Emergency Management

16

129. The Department of Emergency Management (“DEM”) leads San Francisco in planning,

17 preparedness, communication, response, and recovery for daily emergencies, large scale citywide

18 events, and major disasters. DEM is the vital link in emergency communication between the public

19 and first responders.

20

130. One of the programs DEM administers is the Bay Area Urban Areas Security Initiative

21 (“UASI”), which sustains and improves regional capacity to prevent, mitigate, respond to, and recover

22 from terrorist attacks and catastrophic disasters. UASI funds training exercises and regional

23 emergency management and disaster response. This program is funded entirely by federal funds.

24

131. In FY16-17, DEM anticipates receiving about $25 million in federal funding, mostly

25 supporting the UASI program. This represents nearly 30% of the Department’s FY16-17 budget.

26 //

27 //

28 //

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1

d. San Francisco Municipal Transportation Agency’s Vehicle

2

Replacement Program

3

132. San Francisco Municipal Transportation Authority (“SFMTA”) operates over 1,000

4 vehicles across 75 transit lines, carrying on average 700,000 passengers each workday. Replacing and

5 rehabilitating vehicles as they near the end of their useful life helps avoid costly repairs and service

6 interruptions. Growing the vehicle fleet also alleviates overcrowding and enables the transit system to

7 carry more passengers.

8

133. Nearly 80% of SFMTA’s vehicle replacement and rehabilitation funding comes from

9 the Federal government. Based on the latest Metropolitan Transportation Commission’s

10 Transportation Improvement Program, which is a comprehensive spending plan for the Bay Area

11 region, SFMTA expects to receive over $500 million for this purpose from FY 2016-17 through FY

12 2019-20. These funds are subject to “Buy American” provisions. For example, San Francisco’s most

13 recently purchased light-rail vehicles are manufactured in Sacramento, California and New Flyer

14 trolley buses are manufactured in Minnesota. The funds are expected to replace the system’s

15 approximately 1,000 aging vehicles over the four-year period.

16

D. Federal Funding Streams

17

134. San Francisco receives federal funds in the form of grants, as well as though payments

18 for entitlement programs. These entitlement programs include Medicaid and Medicare, Temporary

19 Assistance for Needy Families, Supplemental Nutrition Assistance Program, Foster Care, and various

20 child welfare programs. Undocumented immigrants are not eligible to receive benefits from most

21 entitlement programs. Approximately 80% of the federal funds budgeted for FY16-17 are for

22 entitlement programs.

23

135. San Francisco receives federal funds directly from the Federal government, as well as

24 indirectly through the State of California and other pass-through entities. For FY16-17,

25 San Francisco’s budget includes over $1.1 billion in pass-through funds, the vast majority of which is

26 passed through the State of California. President Trump has identified California as a possible

27 sanctuary jurisdiction. Because California does not prohibit voluntary communications about

28

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1 immigration status, it should be deemed to comply with Section 1373. If Defendants nonetheless cut

2 off funds to California, this could result in the loss of pass-through funds to San Francisco.

3

136. San Francisco receives most federal funds—for both grants and entitlement programs—

4 as reimbursements. San Francisco is currently providing services and benefits that the Federal

5 government has agreed to reimburse. San Francisco is also building major transit expansions and other

6 public infrastructure projects, as well as running programs across a variety of San Francisco agencies,

7 based on the Federal governments’ commitment to pay for these projects and programs. The Executive

8 Order calls into question whether the Federal government will in fact reimburse San Francisco for

9 these funds.

10

137. Congress has established numerous conditions governing eligibility for federal funds.

11 For instance, to receive Medicaid funds, a state must create a state plan that includes assurances to the

12 Federal government that the state will provide specified types of care and that the state regulates health

13 insurance providers to ensure access to medical assistance, among many other requirements. 42 U.S.C.

14 § 1396(a).

15

138. In another example, the United States Department of Housing and Urban Development

16 Community Development Block Grants fund many projects to combat unlawful evictions, maintain

17 stable housing occupancy and supply, and incentivize affordable unit construction. These grants

18 require the grantee to prepare a statement of community development objectives and projected use of

19 funds, provide a citizen participation plan, and certify other enumerated criteria. 42 U.S.C. § 5304.

20

139. No federal funds received by San Francisco have statutory conditions specifically

21 requiring compliance with Section 1373.

22

C. Coercive Effect Of The Executive Order

23

140. The Executive Order threatens not to pay San Francisco over $2 billion in federal funds

24 that is money already spent by San Francisco—money San Francisco is spending today and money

25 San Francisco has reasonably relied on receiving. As set forth in this Complaint, the Executive Order

26 is unconstitutional in numerous respects. Nonetheless, San Francisco currently faces the prospect of

27 sweeping cuts in necessary federal funding.

28 //

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1

141. It would be catastrophic for San Francisco to lose all federal funds. It would not be

2 possible for San Francisco to backfill the loss of $1.2 billion with local revenue sources.

3

142. San Francisco’s reserves are insufficient to cover the loss of all federal funds.

4 San Francisco currently has contingency reserves of approximately $350 million, in a Rainy Day Fund

5 and a Stabilization Fund, which were created and funded over the last decade for the purpose of

6 managing local tax revenue volatility created by economic conditions. These reserve levels, totaling

7 less than 8% of general fund revenues, remain below levels recommended by the Government Finance

8 Officers Association for local governments and the 10% target established by San Francisco law.

9 There are restrictions on the use of these reserves, and even if entirely depleted, their levels would be

10 inadequate to cover a shortfall in federal funds for even a single year. To fully absorb the loss of all

11 federal funds, San Francisco would also have to suspend capital projects—causing significant job

12 loss—and make drastic service cuts in order to maintain a balanced budget, as it is legally required to

13 do.

14

143. Even a loss of 10% of annual federal funds would be calamitous for San Francisco. A

15 cut of $120 million would lead to severe public health and public safety impacts. San Francisco

16 currently has approximately 1,971 police officers, a level mandated by the Charter, but a $120 million

17 cut would likely require San Francisco to reduce that number significantly, with similar reductions in

18 the number of firefighters. Capital programs would be postponed, resulting in lost jobs, and social

19 service programs would be reduced or eliminated. General Fund Departments have identified specific

20 programs and services that they will need to cut if they must reduce their General Fund Support for

21 FY17-18 to help the Mayor’s Office balance the budget. These include, for example, services for

22 women that are domestic violence survivors, programming for low-income children and families, and

23 housing programs to support low-income residents.

24

144. The Executive Order’s threat to cut federal funds is manifestly coercive. This is why at

25 least one jurisdiction has already changed its policy about immigration detainers in response to the

26 Executive Order. The day after the Executive Order was issued, Miami-Dade County Mayor Carlos

27 Giménez instructed the county’s interim corrections director to “fully cooperate” with the Federal

28 government and comply with all immigration detainer requests, eliminating a previous requirement

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1 that the Federal government reimburse detainer costs. “It’s really not worth the risk of losing millions

2 of dollars to the residents of Miami-Dade County in discretionary money from the feds,” said Mayor

3 Giménez. Ray Sanchez, Florida’s Largest County to Comply with Trump’s Sanctuary Crackdown,

4 CNN Politics (Jan. 27, 2017, 6:34 PM ET), http://www.cnn.com/2017/01/27/politics/miami-dade-

5 mayor-sanctuary-crackdown/. There is little doubt that is exactly what the President intends this

6 coercive effect with his promise to defund Sanctuary Cities.

7

D. Budget Impact of the Executive Order

8

145. For FY16-17, San Francisco’s annual operating budget is approximately $9.6 billion.

9 Of this, approximately $1.2 billion is money provided by the Federal government for entitlement

10 programs, grants, and contracts, and other items. For the vast majority of the federal funds received by

11 San Francisco, there is no nexus between the purpose of the funds and immigration enforcement. Only

12 a small percentage of all federal funds received by San Francisco relate to either immigration or law

13 enforcement.

14

146. The concern about losing federal funds is so acute that the Board of Supervisors has

15 established the Budget and Finance Federal Select Committee, a new committee that will consider

16 issues related to the possible loss of federal funds as a result of the Executive Order and other federal

17 action.

18

147. San Francisco has already begun the seven-month process of adopting the annual

19 budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the

20 Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco

21 departments with detailed guidance on the preparation of departments’ budget requests. Most

22 San Francisco departments held public hearings on their budget proposals in January and February and

23 submitted their budget requests for the coming fiscal year to the Controller by February 21.

24 San Francisco law requires the Controller to submit a consolidated budget proposal to the Mayor by

25 March 1, the Mayor to submit a balanced budget to the Board of Supervisors by June 1, and the Board

26 of Supervisors to approve a balanced budget by August 1.

27

148. To meet the June 1 deadline, the Mayor must make fundamental budget decisions by

28 May 15, and input these decisions into San Francisco’s budget software by May 24. During the last

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1 week of May, the Controller’s Office reconciles and confirms all financial calculations in the Mayor’s

2 proposed budget, while the Mayor’s Budget Office finalizes the narrative publication that accompanies

3 the proposed budget.

4

149. The budget for the fiscal year beginning July 1, 2017 will be approximately $10 billion,

5 approximately $5 billion of which is in San Francisco’s General Fund. The remainder of the budget is

6 comprised of self-supporting activities at San Francisco’s enterprise departments, which focus on city-

7 related business operations and include the Port, the Municipal Transportation Agency, the Airport,

8 the Public Utilities Commission, and others. The use of funds in these operations is legally restricted

9 and cannot be redirected to backfill a shortfall in the General. Fund. Money in San Francisco’s

10 General Fund is used to support public services such as public health, human services, police and fire

11 services, and public works. Approximately $2 billion of General Fund money is legally dedicated for

12 specific purposes, leaving approximately $3 billion in discretionary funds.

13

150. One of the fundamental budget decisions the Mayor must make by May 15, 2017, is

14 whether to create a budget reserve to account for the possible loss of federal and state funds in the

15 coming fiscal year. This presents a Hobson’s choice. San Francisco, facing possible reductions, could

16 place funds into reserve at the beginning of the fiscal year, harming the public by reducing the amount

17 of money in San Francisco’s General Fund. Or San Francisco could budget based on the continued

18 receipt of federal and state funds, knowing that cuts could come suddenly, outside of the budget

19 process.

20

151. If unanticipated cuts come mid-year, the General Fund will take an even bigger hit at

21 that time, as there will be less time to absorb the loss of funds. Depending on the nature of the cuts,

22 they could lead to immediate service cuts, layoffs, or cancellation of contracts and associated

23 penalties.

24

152. If current levels of uncertainty remain by May 15, 2017, the Mayor will be forced to

25 propose a federal and state budget reserve. The final amount of the reserve will depend on the Mayor’s

26 assessment of the amount of funding at risk and the likelihood that federal or state funds will be cut.

27 Money used to fund the reserve is money that will not be available for General Fund programs and

28 services.

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1

153. A May 15, 2017, decision to set the reserve at a specified amount will have a real world

2 impact when the new fiscal year begins on July 1, 2017. Beginning on this date, funds allocated for the

3 reserve will sit in the reserve instead of being available for General Fund services and programs. Once

4 funds are placed in a federal and state budget reserve, they will remain there for the entire fiscal year

5 unless they are released in response to reliably detailed information about the timing and size of

6 federal or state funding cuts.

7

154. The Mayor must make a trade-off between putting money into a reserve and using it for

8 other San Francisco priorities, some of which are currently unfunded. For instance, the Department of

9 Homelessness and Supportive Housing needs an additional $19.5 million in the next two fiscal years

10 to make an impact in reducing homelessness in San Francisco. This money would fund a family

11 shelter expansion, youth housing subsidies, a resource center, and shelter maintenance and security. A

12 reserve would set money aside instead of using it for purposes like this.

13

155. Since the Executive Order issued, San Francisco has received inquiries from credit

14 rating agencies about the impact of the Executive Order on San Francisco’s finances. If credit rating

15 agencies downgrade their assessment of San Francisco, it will increase San Francisco’s borrowing

16 costs. The Executive Order imposes a “substantial contingent liability” to the extent that it

17 “immediately and directly affects the borrowing power, financial strength, and fiscal planning” of

18 San Francisco. See Clinton v. City of N.Y., 524 U.S. 417, 430-31 (1998).

19

CAUSES OF ACTION

20

COUNT ONE

21 DECLARATORY RELIEF – SAN FRANCISCO LAW COMPLIES WITH 8 U.S.C. § 1373

22

156. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

23 if fully set forth herein.

24

157. San Francisco contends that it complies with Section 1373. San Francisco

25 Administrative Code Chapters 12H and 12I do not prohibit, or in any way restrict, any government

26 entity or official from sending to, or receiving from, immigration officials information regarding the

27 citizenship or immigration status, lawful or unlawful, of any individual.

28

158. Defendants contend that San Francisco does not comply with Section 1373.

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1

159. An actual controversy presently exists between San Francisco and Defendants about

2 whether San Francisco complies with Section 1373.

3

160. A judicial determination resolving this controversy is necessary and appropriate at this

4 time.

5

COUNT TWO

6

DECLARATORY RELIEF – SAN FRANCISCO POLICIES

COMPLY WITH 8 U.S.C. § 1373

7

8

161. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

9 if fully set forth herein.

10

162. San Francisco contends that its policies comply with Section 1373. San Francisco does

11 not prohibit, or in any way restrict, any government entity or official from sending to, or receiving

12 from, immigration officials information regarding the citizenship or immigration status, lawful or

13 unlawful, of any individual.

14

163. Defendants contend that San Francisco does not comply with Section 1373.

15

164. An actual controversy presently exists between San Francisco and Defendants about

16 whether San Francisco complies with Section 1373.

17

165. A judicial determination resolving this controversy is necessary and appropriate at this

18 time. 19 20

COUNT THREE TENTH AMENDMENT – 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL

21

166. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

22 if fully set forth herein.

23

167. On its face, Section 1373 commandeers state and local governments in violation of the

24 Tenth Amendment to the Constitution by, inter alia, regulating the “States in their sovereign

25 capacity,” Reno, 528 U.S. at 151, limiting state authority to regulate internal affairs and determine the

26 duties and responsibilities of state employees, Gregory, 501 U.S. at 460, and ultimately forcing States

27 to allow their employees to use state time and state resources to assist in the enforcement of federal

28

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1 statutes regulating private individuals, Reno, 528 U.S. at 151, and to provide information that belongs

2 to the State and is available to them only in their official capacity, Printz, 521 U.S. at 932-33 & n.17.

3

168. As applied to invalidate state and local Sanctuary City laws, like San Francisco

4 Administrative Code Chapters 12H and 12I, which were enacted to further legitimate local interests

5 grounded in the basic police powers of local government and related to public health and safety,

6 Section 1373(a) commandeers state and local governments and violates the Tenth Amendment to the

7 United States Constitution.

8

COUNT FOUR

9

TENTH AMENDMENT, SEPARATION OF POWERS, AND SPENDING CLAUSE – EXECUTIVE ORDER SECTION 9(A)’S FUNDING RESTRICTIONS ARE

10

UNCONSTITUTIONAL

11

169. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

12 if fully set forth herein.

13

170. Executive Order Section 2(c) states: “It is the policy of the executive branch to . . .

14 Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

15 except as mandated by law.” Executive Order at 8799.

16

171. Executive Order Section 9 states: “It is the policy of the executive branch to ensure, to

17 the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8

18 U.S.C. 1373.” Id. at 8801.

19

172. Executive Order Section 9(a) contains a Funding Restriction stating: “In furtherance of

20 this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with

21 law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

22 jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law

23 enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to

24 designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary

25 jurisdiction.” Id.

26

173. The Funding Restriction violates the Tenth Amendment, the Spending Clause, and

27 Article I, sec. 1 of the United States Constitution by:

28

a. Exercising Spending Power that the Constitution grants to Congress;

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1

b. Imposing new funding conditions on existing federal funds;

2

c. Imposing funding conditions not germane to the purpose of the funds;

3

d. Imposing funding conditions so severe as to coerce compliance; and

4

e. Imposing funding conditions that require jurisdictions to act unconstitutionally.

5

COUNT FIVE

6

TENTH AMENDMENT – EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT

DIRECTIVE IS UNCONSTITUTIONAL

7

8

174. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

9 if fully set forth herein.

10

175. Executive Order Section 9(a) contains an Enforcement Directive stating: “The Attorney

11 General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

12 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

13 law.” Executive Order at 8801.

14

176. The Federal government has taken the position that a state or local jurisdiction that fails

15 to affirmatively assist federal immigration officials—by, for example, refusing to comply with a

16 detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations—hinders the

17 enforcement of federal law and violates Section 1373.

18

177. Accordingly, the Enforcement Directive commandeers state and local governments,

19 violating Tenth Amendment to the United States Constitution by, inter alia, compelling them to

20 enforce a federal program by imprisoning individuals subject to removal at the request of the Federal

21 government when those individuals would otherwise be released from custody.

22

23

PRAYER FOR RELIEF

24

Wherefore, San Francisco prays that the Court grant the following relief:

25

San Francisco Complies With Section 1373 (Count One and Two)

26

1. Declare that San Francisco laws comply with Section 1373;

27

2. Declare that San Francisco policies and practices comply with Section 1373;

28 //

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 // 23 // 24 // 25 // 26 // 27 // 28 //

3. Preliminarily and permanently enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply with Section 1373;
Section 1373 Is Unconstitutional (Count Three) 4. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face; 5. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for
receiving federal funds; 6. Declare that Section 1373(a) is invalid as applied to state and local Sanctuary City laws,
like San Francisco Administrative Code Chapters 12H and 12I, which were enacted for legitimate local purposes related to public health and safety; 7. Preliminarily and permanently enjoin Defendants from enforcing Section 1373(a) against jurisdictions that enact Sanctuary City laws for legitimate local purposes; Executive Order Section 9(a)’s Funding Restriction Is Unconstitutional (Count Four) 8. Declare the Funding Restriction in Executive Order invalid; 9. Preliminarily and permanently enjoin Defendants from enforcing the Funding Restriction in the Executive Order; Executive Order Section 9(a)’s Enforcement Directive Is Unconstitutional (Count Five) 10. Declare the Enforcement Directive in Executive Order invalid; 11. Preliminarily and permanently enjoin unconstitutional applications of the Enforcement Directive in Executive Order Section 9(a); Other Relief 12. Award San Francisco reasonable costs and attorney’s fees; and

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1

13. Grant any other further relief that the Court deems fit and proper.

2 Dated: February 27, 2017

3

DENNIS J. HERRERA

4

City Attorney RONALD FLYNN

5

JESSE C. SMITH YVONNE R. MERÉ

6

MOLLIE M. LEE SARA J. EISENBERG

7

Deputy City Attorneys

8 By: /s/ Dennis J. Herrera

9

DENNIS J. HERRERA

City Attorney

10

11

By: /s/ Mollie M. Lee

MOLLIE M. LEE

12

Deputy City Attorney

13

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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EXHIBIT 1

CHAPTER 12H: IMMIGRATION STATUS

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San Francisco Administrative Code

CHAPTER 12H: IMMIGRATION STATUS

Page 1 of 2

Sec. 12H.1. Sec. 12H.2. Sec. 12H.3. Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

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CHAPTER 12H: IMMIGRATION STATUS

Page 2 of 2

(Added by Ord.C37a5s-8e9,3A:p1p7. 1-0c/v24-/0890;4am8e5n-dWedHbyOOrd.D22o8c-0u9m, FeilenNt o2. 00910F32il,eAdpp0. 120/-2287-/210079; OPrda. g96e-164,3FiolefN5o7. 160022, App.
6/17/2016, Eff. 7/17/2016)

SEC. 12H.2-1. [REPEALED.]

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.

The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)

SEC. 12H.4. ENFORCEMENT.

The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

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EXHIBIT 2

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

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San Francisco Administrative Code

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

Page 1 of 7

Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.

The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.

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Given that civCilaismem3i:g1r7at-icovn-0d0et4a8in5e-rWs aHreOissDueodcbuymiemnmt 2ig0ratiFoinleodff0ic2e/r2s7w/1it7houPtajugdeic4ia6l oofv5er7sight, and the regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance, there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE "Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *1012 (N.D. Ill. filed May 5, 2014).)

On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require state or local law enforcement officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.

According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.

The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.

In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.

First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions

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about local lawCenafsoerc3e:m17en-ct'vs-l0ia0b4il8it5y-WforHcOonsDtitouctiuomnaelnvtio2l0atioFnisleifda0n2y/2pe7r/s1o7n isPoavgeerd4e7taionfe5d7when immigration agents are unable to be present at the time of the person's release from local custody.

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Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.

The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.

The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.

In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.2. DEFINITIONS.

"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed.
(b) The individual has been acquitted of all criminal charges filed against him or her.
(c) The individual has served all the time required for his or her sentence.
(d) The individual has posted a bond, or has been released on his or her own recognizance.
(e) The individual has been referred to pre-trial diversion services.

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CHAPTER 12I: CIVIL IMMIGRATION DETAINERS (f) The indivCidausael i3s:o1t7h-ecrvw-i0s0e4e8li5g-ibWleHfOor reDleoacsuemunednetr2s0tateFoilreldoc0a2l/l2a7w/.17 Page 48 of 57

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"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.

"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.

"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.

"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.

"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.

"Personal information" means any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information.

"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).

"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.

(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and

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(2) A magiCstarastee 3h:a1s7d-ectve-r0m0in4e8d5-thWatHtOhereDisocpurombaebnlte2c0ausFeitloedbe0l2ie/v2e7t/h1e7inPdiavgideua4l9isogf u5i7lty of a Violent Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.

(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.

(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:

(1) The individual either:

(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or

(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or

(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and

(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a) (3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

(e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.

(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.4. PURPOSE OF THIS CHAPTER.
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The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary notification of release of individuals, transmission of personal information, and civil immigration documents based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.5. SEMIANNUAL REPORT.

By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.6. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
CODIFICATION NOTE
1. So in Ord. 204-13.
SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

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In enacting anCdaismepl3e:m17en-ctivn-g00th4i8s 5C-hWapHteOr 12DIothceumCietyntis2a0ssuFmiliendg 0an2/u2n7d/1er7takPinaggoenl5y1toofp5ro7mote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.8.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.10.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.11.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

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EXHIBIT 3

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Presidential Documents

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Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
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Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as ‘‘Secure Communities’’ referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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8802

Case 3:17-cv-00485-WHO Document 20 Filed 02/27/17 Page 56 of 57
Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents

8803

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017–02102 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 25, 2017.

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1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

CITY AND COUNTY OF SAN FRANCISCO’S

Plaintiff,

NOTICE OF MOTION AND MOTION FOR

19

PRELIMINARY INJUNCTION;

vs.

MEMORANDUM OF POINTS AND

20

AUTHORITIES IN SUPPORT THEREOF

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

Date:

April 12, 2017

JOHN F. KELLY, Secretary of United States Time:

2:00 p.m.

22 Department of Homeland Security,

Judge:

Honorable William H. Orrick

JEFFERSON B. SESSIONS, Attorney General Dept:

Courtroom 2

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ......................................................................................................... iii
3 NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION ...........................1 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
4 INTRODUCTION ...........................................................................................................................1
5 FACTS .............................................................................................................................................2

6

A. San Francisco’s Sanctuary City Laws And Policies. ...................................2

7

B. The Executive Order. ...................................................................................4

C. The Executive Order Creates An Imminent Hobson’s Choice For

8

San Francisco. ..............................................................................................6

9 PRELIMINARY INJUNCTION STANDARD...............................................................................8

10 ARGUMENT ...................................................................................................................................8

11

I. San Francisco Is Likely To Succeed On The Merits Of Its Claims.........................8

A. San Francisco Is Likely To Succeed On Its Arguments That

12

Section 9(a) Of The Executive Order Is Unconstitutional...........................8

13

1. The Funding Restriction Violates The Separation Of Powers.........9

14

2. The Funding Restriction Violates The Spending Clause. ..............10

a. It Imposes New Conditions On Existing

15

Federal Funding. ................................................................10

16

b. It Imposes Conditions Unrelated To The Purpose

Of The Funding..................................................................11 17
c. It Is Unconstitutionally Coercive. ......................................12

18

d. It Induces San Francisco To Engage In

19

Unconstitutional Activity...................................................13

3. The Executive Order Violates The Tenth Amendment. ................14 20
B. San Francisco Is Likely To Succeed On Its Arguments Concerning

21

The Unconstitutionality Of—And San Francisco’s Compliance With—

Section 1373...............................................................................................16 22
1. Section 1373 Is Facially Unconstitutional. ....................................16

23

2. Section 1373 Is Unconstitutional As Applied

24

To San Francisco............................................................................18

3. San Francisco Complies With Section 1373

25

As Properly Interpreted..................................................................19

26

II. San Francisco Will Suffer Irreparable Harm In The Absence Of

Preliminary Relief. .................................................................................................21 27
A. San Francisco Faces Imminent And Irreparable Budgetary Harm. ...........21

28

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B. San Francisco Faces An Imminent Deprivation Of

1

Constitutional Rights. ................................................................................22

2

C. San Francisco Residents And Employees Face Community Injury. .........24

3

III. The Balance Of Equities And Public Interest Favor A Preliminary Injunction. ...25

4 CONCLUSION..............................................................................................................................25

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 2 Federal Cases

TABLE OF AUTHORITIES

3 Alliance for the Wild Rockies v. Cottrell 4 632 F.3d 1127 (9th Cir. 2011) .....................................................................................................8
5 Ariz. v. United States 132 S. Ct. 2492 (2012).........................................................................................................13, 25
6 Bassidji v. Goe
7 413 F.3d 928 (9th Cir. 2005) .......................................................................................................6

8 Bay Area Addiction Research & Treatment, Inc. v. City of Antioch 179 F.3d 725 (9th Cir. 1999) .....................................................................................................25
9

10

Califano v. Yamaski 442 U.S. 682 (1979).....................................................................................................................8

11 Campbell v. Allied Van Lines Inc.
12 410 F.3d 618 (9th Cir. 2005) .....................................................................................................16

13 City of New York v. United States 179 F.3d 29 (2d Cir. 1999) ..................................................................................................18, 19
14

15

Clinton v. City of New York 524 U.S. 417 (1998).....................................................................................................................9

16 Coalition for Econ. Equity v. Wilson 17 122 F.3d 718 (9th Cir. 1997) .....................................................................................................24

18 Conant v. Walters 309 F.3d 629 (9th Cir. 2002) .....................................................................................................17
19 Davila v. N. Reg’l Joint Police Bd.
20 979 F. Supp. 2d 612 (W.D. Pa. 2013)........................................................................................14
21 Decker v. O’Donnell 22 661 F.2d 598 (7th Cir. 1980) .......................................................................................................8

23 Drakes Bay Oyster Co. v. Jewell 747 F.3d 1073 (9th Cir. 2014) ...................................................................................................25
24 Galarza v. Szalczyk
25 745 F.3d 634 (3d Cir. 2014) ................................................................................................14, 15
26 Garcia v. San Antonio Metro. Transit Auth. 27 469 U.S. 528 (1985)...................................................................................................................16

28

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Gregory v. Ashcroft 1 501 U.S. 452 (1991)...................................................................................................................17
2 Int’l Jensen, Inc. v. Metrosound U.S.A., Inc. 3 4 F.3d 819 (9th Cir. 1993) .........................................................................................................25

4 Mass. v. United States 435 U.S. 444 (1978)...................................................................................................................11
5 Melendres v. Arpaio
6 695 F.3d 990, 1000 (9th Cir. 2012) ...............................................................................13, 22, 25
7 Mendia v. Garcia 8 768 F.3d 1009 (9th Cir. 2014) ...................................................................................................14
9 Miranda-Olivares v. Clackamas Cnty. 2014 WL 1414305 (D. Or. Apr. 11, 2014) ....................................................................14, 15, 16
10 Morales v. Chadbourne
11 No. CV 12-301-M-LDA, 2017 WL 354292 (D.R.I. Jan. 24, 2017) ..........................................13
12 Morales v. Chadbourne 13 793 F.3d 208 (1st Cir. 2015)......................................................................................................14
14 Nat’l Fed’n of Indep. Bus. v. Sebelius 132 S. Ct. 2566 (2012).........................................................................................................12, 13
15 Nelson v. Nat’l Aeronautics & Space Admin.
16 530 F.3d 865 (9th Cir. 2008) .....................................................................................................23

17 Nevada v. Hicks 18 533 U.S. 353 (2001)...................................................................................................................17
19 New York v. United States 505 U.S. 144 (1992).................................................................................................11, 14, 16, 17
20 Pennhurst State Sch. & Hosp. v. Halderman
21 451 U.S. 1 (1981).................................................................................................................10, 11

22 Printz v. United States 521 U.S. 898 (1997).......................................................................................................14, 15, 17
23

24

Reno v. Condon 528 U.S. 141 (2000)...................................................................................................................17

25 Scott v. Roberts
26 612 F.3d 1279 (11th Cir. 2010) .................................................................................................25

27 Sea-Land Serv., Inc. v. I.C.C. 738 F.2d 1311 (D.C. Cir. 1984) ...................................................................................................6
28

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South Dakota v. Dole 1 483 U.S. 203 (1987).......................................................................................................10, 11, 13
2 Steinle v. City & Cty. of San Francisco 3 16-CV-02859-JCS, 2017 WL 67064 (N.D. Cal. Jan. 6, 2017) ............................................10, 21
4 Texas v. United States No. 7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) .....................................24
5 Texas v. United States
6 809 F.3d 134 (5th Cir. 2015) .......................................................................................................8
7 United States v. North Carolina 8 192 F. Supp. 3d 620 (M.D.N.C. 2016) ......................................................................................22
9 Utley v. Varian Assocs., Inc. 811 F.2d 1279 (9th Cir. 1987) .....................................................................................................6
10 Valle del Sol Inc. v. Whiting
11 732 F.3d 1006 (9th Cir. 2013) ...................................................................................................24
12 Winter v. Nat’l Res. Def. Council, Inc. 13 555 U.S. 7 (2008).........................................................................................................................8
14 Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)...................................................................................................................10
15 Zivotofsky ex rel. Zivotofsky v. Kerry
16 135 S. Ct. 2076 (2015)...............................................................................................................10
17 Federal Constitutional Provisions
18 U.S. Const. art. I, § 8, cl. 1...............................................................................................................9
19 U.S. Const. amend. IV .........................................................................................................3, 14, 24
20 U.S. Const. amend. X.............................................................................8, 14, 15, 16, 17, 18, 23, 24 21 Federal Statutes 22
8 U.S.C. 23 Section 1373 ...................................................................................................................... passim
24 Federal Rules
25 Federal Rule of Civil Procedure 65 .................................................................................................1
26 Federal Regulations
27 8 C.F.R. § 287.7 .........................................................................................................................................3
28

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§ 287.7 (a)-(b) ............................................................................................................................13 1 § 287.7 (e) ....................................................................................................................................4 2 3 State Cases

4 Bologna v. City & Cty. of San Francisco 192 Cal. App. 4th 429 (2011) ....................................................................................................10
5 Dep’t of Pub. Health v. Super. Ct,
6 60 Cal. 4th 940 (2015) ...............................................................................................................20
7 LaCroix v. Junior 8 Case No. F17-376 (Fla. Cir. Ct. Mar. 3, 2017) ......................................................................3, 15
9 State Statutes

10 California Civil Code § 56.05(j)....................................................................................................................................20
11 § 1798.92(c) ...............................................................................................................................20

12 California Welf. & Inst. Code 13 § 831 ..........................................................................................................................................19
14 San Francisco Codes

15 San Francisco Administrative Code § 2A.83.......................................................................................................................................19
16 Chapter 12H ...............................................................................................................3, 19, 20, 23
Chapter 12I ..................................................................................................................3, 4, 19, 20 17
San Francisco Ordinances 18

19

San Francisco, Cal. Ordinance No. 96-16 (June 7, 2016) ...........................................................................................................18

20 Other Authorities
21 Eyder Peralta, You Say You’re An American, But What If You Had To
22 Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM) ....................................................14

23 Senate Report No. 104-249 (1996). ...............................................................................................17 24 Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong...........................................................9 25 Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. .............................9, 10 26

27

28

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1

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

2

PLEASE TAKE NOTICE that on Wednesday, April 12, 2017, at 2:00 p.m. or as soon

3 thereafter as they may be heard before the Honorable William H. Orrick in Courtroom 2 of the United

4 States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco,

5 CA 94102, Plaintiff City and County of San Francisco (“San Francisco”) will and hereby does move

6 the Court pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction against

7 Defendants Donald J. Trump, President of the United States of America; John F. Kelly, in his official

8 capacity as Secretary of the United States Department of Homeland Security; Jefferson B. Sessions, in

9 his official capacity as Attorney General of the United States; and the United States of America

10 (collectively, “Defendants”); and their officers, agents, servants, employees, and attorneys, and any

11 other persons who are in active concert or participation with them.

12

San Francisco respectfully moves the Court to enter a nationwide preliminary injunction

13 prohibiting Defendants from enforcing Section 9(a) of Executive Order 13768, entitled “Enhancing

14 Public Safety in the Interior of the United States” (“Executive Order”), and 8 U.S.C. Section 1373

15 (“Section 1373”) against any jurisdiction in the United States. In the alternative, because San

16 Francisco’s laws comply with Section 1373, San Francisco seeks an order enjoining Defendants from

17 taking any action under the Executive Order to declare San Francisco a “sanctuary jurisdiction” that is

18 ineligible for federal funds. This motion is based on this Notice of Motion and Motion, the

19 accompanying supporting Memorandum of Points and Authorities, the accompanying supporting

20 declarations, as well as the papers, evidence and records on file in this action, and any other written or

21 oral evidence or argument as may be presented at or before the time this motion is heard by the Court.

22

MEMORANDUM OF POINTS AND AUTHORITIES

23

INTRODUCTION

24

During his campaign, President Trump pledged to end federal funding to sanctuary cities.

25 Once in office, he moved quickly to do so, signing an executive order that directed the Attorney

26 General and Secretary of Homeland Security to compile a list of “sanctuary jurisdictions” and ensure

27 that they do not receive federal funds. With this stroke of his pen, President Trump purported to seize

28 the spending power that the United States Constitution entrusts to Congress. Indeed, he sought to give

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1 himself the authority to wield that pen in ways that exceed even the legislative branch’s lawful

2 spending power. And he assumed for the federal government the right to commandeer state and local

3 governments to do the federal government’s job and dictate how they must conduct their internal

4 affairs on matters squarely within the traditional police powers of local government. In so doing,

5 President Trump not only violated the Constitution, but also undermined the principles that form the

6 bedrock of our democracy: separation of powers, a federal government limited by enumerated powers,

7 and independent state sovereignty.

8

The consequences of this presidential fiat are potentially catastrophic. Although the Executive

9 Order is unclear about which funds are at stake, it appears to direct the withdrawal of all federal

10 funding from “sanctuary jurisdictions.” Withdrawing all—or even a substantial amount—of federal

11 funding would be devastating to San Francisco: the City would be forced to reduce the number of first

12 responders, suspend capital projects, and slash critical service programs. And if the cuts were to come

13 mid-fiscal year, the impact would be even more severe as there would be less time to absorb the loss.

14

San Francisco cannot stand idly by waiting for the Executive Order’s uncertain process to

15 unfold. Accordingly, unless the Court grants the requested relief—or Defendants make clear that the

16 Executive Order applies considerably more narrowly than it appears—San Francisco will have to place

17 money into a budget reserve to account for the potential loss of significant funds. Money placed in a

18 reserve is money that will not be available for other services and programs when the new fiscal year

19 begins on July 1, 2017. San Francisco recognizes that Defendants may clarify the scope of the

20 Executive Order in the weeks and months to come, but there is no assurance they will, and

21 San Francisco must make decisions about a budget reserve by May 15, 2017. San Francisco therefore

22 has no choice but to seek this Court’s intervention now.1

23

FACTS

24

A. San Francisco’s Sanctuary City Laws And Policies.

25

San Francisco’s body of Sanctuary City law is contained in two chapters of its Administrative

26
1 If Defendants clarify that the Executive Order is narrower than it appears—e.g., that it applies 27 only to a specific subset of federal funds, such as future grants directly related to immigration
enforcement—San Francisco will reconsider the need for immediate preliminary relief. 28

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1 Code: Chapters 12H and 12I.2 As set forth in the legislative findings in Chapter 12I, the Board of

2 Supervisors enacted these laws to serve a critical local purpose: “to foster respect and trust between

3 law enforcement and residents, to protect limited local resources, to encourage cooperation between

4 residents and City officials, including especially law enforcement and public health officers and

5 employees, and to ensure community security, and due process for all.” S.F. Admin. Code § 12I.1.

6

Chapter 12H prohibits San Francisco departments, agencies, commissions, officers, and

7 employees from using San Francisco funds or resources to assist in enforcing federal immigration law

8 or gathering or disseminating information regarding an individual’s release status, or other confidential

9 identifying information, unless such assistance is required by federal or state law. Id. § 12H.2.3

10

As relevant here, Chapter 12I prohibits San Francisco law enforcement officials from detaining

11 an individual who is otherwise eligible for release from custody solely on the basis of a civil

12 immigration detainer request issued by U.S. Immigration and Customs Enforcement (“ICE”). Id.

13 § 12I.3. Importantly, an ICE detainer request is distinct from a criminal warrant, which San Francisco

14 honors consistent with its Sanctuary City law. Detainer requests are not issued by a judge based on a

15 finding of probable cause. They are simply requests by ICE that a state or local law enforcement

16 agency voluntarily hold individuals after their release date to provide ICE agents extra time to decide

17 whether to take those individuals into federal custody and then deport them. See 8 C.F.R. § 287.7.4

18 Complying with such requests would potentially expose San Francisco to civil liability for Fourth

19 Amendment violations. See Section I(A)(2)(d), infra. Even if an obligation to comply with detainer

20 requests were constitutional, doing so would require San Francisco to commit scarce law enforcement

21 personnel and resources to detain individuals in holding cells, to supervise and feed individuals during

22

2 The full text of Chapters 12H and 12I are attached as Exhibits A and B, respectively, to the

23 accompanying Declaration of Sara J. Eisenberg (“Eisenberg Decl.”). 3 Chapter 12H previously prohibited the dissemination of information regarding the

24 immigration status of any individual, but the Board of Supervisors amended the law in July 2016 to

delete that prohibition. Nothing in the current version of Chapter 12H or 12I limits communications

25 regarding citizenship or immigration status in any way.

4 As one judge recently explained: “Such detainers or requests are not evidence that a crime 26 has been committed, or that someone is in this country illegally. They are not evidence of anything.

They simply indicate that ICE believes it has a basis to inquire further as to the status of the person 27 sought.” LaCroix v. Junior, Case No. F17-376, slip op. at 2 (Fla. Cir. Ct. Mar. 3, 2017). For the

Court’s convenience, a copy of this opinion is attached to the Eisenberg Declaration as Exhibit G. 28

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1 the prolonged detention, and to invest in additional administration and training. Declaration of

2 Vicki Hennessy in Support of CCSF’s Mot. for Prelim. Inj. (“Hennessy Decl.”) ¶ 11.5

3

Chapter 12I also prohibits San Francisco law enforcement officials from responding to a

4 federal immigration officer’s request for advance notification of the date and time an individual in San

5 Francisco’s custody is being released, unless the individual meets certain criteria. S.F. Admin Code

6 § 12I.3(c), (d). Finally, Chapter 12I provides that “[l]aw enforcement officials shall not arrest or

7 detain an individual, or provide any individual’s personal information to a federal immigration officer,

8 on the basis of an administrative warrant, prior deportation order, or other civil immigration document

9 based solely on alleged violations of the civil provisions of immigration laws.” Id. § 12I.3(e).

10

B. The Executive Order.

11

On January 25, 2017, President Trump issued Executive Order 13768, entitled “Enhancing

12 Public Safety in the Interior of the United States.” See Eisenberg Decl. Exh. C. The Executive Order

13 condemns jurisdictions with sanctuary policies as “willfully” violating federal law and asserts that

14 “[t]hese jurisdictions have caused immeasurable harm to the American people and to the very fabric of

15 our republic.” Executive Order § 1. The Executive Order directs the Attorney General and the

16 Secretary of the Department of Homeland Security to strip “sanctuary jurisdictions” of federal funds.

17 See id. §§ 1, 2, 9(a). The “Funding Restriction” of Section 9(a) states:

18

[T]he Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to

19

comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by

20

the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction

21

as a sanctuary jurisdiction. (Id. § 9(a).)

22

This language raises two threshold questions: What jurisdictions will be considered “sanctuary

23 jurisdictions” within the meaning of the Executive Order? And what funds will be stripped from

24 jurisdictions that are so designated?

25

As to the former question, Section 9(a) of the Executive Order defines a “sanctuary

26 jurisdiction” as any jurisdiction that “willfully refuse[s] to comply with 8 U.S.C. 1373.” Id. Section

27

5 The local agency bears the financial burden of the detention: “No detainer issued as a result

28

of a determination made under this chapter . . . shall incur any fiscal obligation on the part of the Department.” 8 C.F.R. § 287.7(e).

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1 1373 in turn provides that a “local government entity or official may not prohibit, or in any way

2 restrict, any government entity or official from sending to, or receiving from, [federal immigration

3 officials] information regarding the citizenship or immigration status . . . of any individual.” Although

4 Section 1373 does not mention compliance with ICE civil detainer requests, the Executive Order

5 improperly links the two. See Executive Order § 9(b) (equating “sanctuary jurisdictions” with

6 jurisdictions “that ignored or otherwise failed to honor any detainers with respect to such aliens”).6 It

7 is therefore apparent that the Trump administration intends to designate all jurisdictions that fail to

8 comply with detainer requests—including San Francisco—as “sanctuary jurisdictions” to be stripped

9 of federal funds. If there were any question about whether Defendants deem San Francisco a

10 “sanctuary jurisdiction,” that question is answered by Defendants’ own statements, which characterize

11 San Francisco as a Sanctuary City. See, e.g., Eisenberg Decl. Exh. D [Donald J. Trump: Address on

12 Immigration, Donald J. Trump for President (Aug. 31, 2016) (“Another victim is Kate Steinle, gunned

13 down in the Sanctuary City of San Francisco . . . .”)].

14

As to what funds will be stripped from “sanctuary jurisdictions,” the Executive Order is

15 similarly vague, and seemingly sweeping. Conceivably, it could refer only to grants, and not to

16 entitlement programs like Medicaid that rightfully belong to their recipients and not local

17 governments. It could be limited only to funds administered by the Attorney General or the

18 Department of Homeland Security. Or it could apply only prospectively and not as a bar to

19 reimbursing jurisdictions for services already provided in reliance on previously committed funds.

20

But the plain language of the Executive Order, as well as the President’s own statements,

21

22

6 This misguided interpretation of Section 1373 is also reflected in a memorandum prepared by

the Department of Justice, Office of the Inspector General (“OIG”) in May 2016, regarding potential

23 violations of Section 1373 by recipients of funding from the Edward Byrne Memorial Justice

Assistance Grant Program (“OIG Memo”). See Request for Judicial Notice in Support of Mot. for

24 Prelim. Inj. (“RJN”) Exh. A. In that memo, OIG expressed concern that local laws concerning

detainer requests “may have a broader practical impact on the level of cooperation afforded to ICE by

25 these jurisdictions and may, therefore, be inconsistent with at least the intent of Section 1373.” Id. at

7. It went on to state that local laws and policies that “purport to be focused on civil immigration

26 detainer requests [and say nothing about sharing immigration status with ICE] . . . may nevertheless be

affecting ICE’s interactions with the local officials regarding ICE immigration status requests.” Id.

27 OIG also stated that such immigration detainer request policies “may be causing local officials to

believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all

28 respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id. at 8.

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1 strongly indicate that Defendants intend to interpret and implement it to withdraw all current and

2 future federal funds from “sanctuary jurisdictions.” The Executive Order directs the Office of

3 Management and Budget to “obtain and provide relevant and responsive information on all Federal

4 grant money that currently is received by any sanctuary jurisdiction.” Executive Order § 9(c)

5 (emphasis added). And it describes the executive’s policy as “[e]nsur[ing] that jurisdictions that fail to

6 comply with applicable Federal law do not receive Federal funds, except as mandated by law.”

7 Executive Order § 2(c); see generally Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (explaining

8 that the text of an executive order “must be construed consistently with the Order’s ‘object and

9 policy’”). And to the extent the Executive Order’s plain language may be ambiguous, statements by

10 President Trump and his spokesperson indicate an intent to use defunding as a “weapon” to deprive

11 jurisdictions of “the money they need to properly operate as a city or state” (Eisenberg Decl. Exh. E)

12 to “end[] sanctuary cities.” Id. Exh. F.7

13

Finally, as relevant here, the Executive Order includes a far-reaching “Enforcement Directive,”

14 ordering the Attorney General to “take appropriate enforcement action against any entity that violates

15 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

16 enforcement of Federal law.” Executive Order § 9(a).

17

C. The Executive Order Creates An Imminent Hobson’s Choice For San Francisco.

18

San Francisco acknowledges that it is not yet certain when—or precisely which—federal funds

19 will be withdrawn under the Executive Order. But if Defendants strip all federal funds from

20 San Francisco, the result will be “catastrophic.” Declaration of Ben Rosenfield in Support of CCSF’s

21 Mot. for Prelim. Inj. (“Rosenfield Decl.”) ¶ 36; see also Declaration of Melissa Whitehouse in Support

22 of CCSF’s Mot. for Prelim. Inj. (“Whitehouse Decl.”) ¶ 16. For FY16-17, San Francisco’s annual

23 operating budget is approximately $9.6 billion. Rosenfield Decl. ¶ 9. Of this, approximately $1.2

24 billion is money provided by the federal government. Id. On top of the federal funds allocated in the

25 annual operating budget, San Francisco expects to receive an additional $800 million in federal multi-

26

27

7 In construing an executive order issued by the President, it is appropriate to look to evidence

of the President’s intent. See Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1285 (9th Cir. 1987); Sea-

28 Land Serv., Inc. v. I.C.C., 738 F.2d 1311, 1314 (D.C. Cir. 1984).

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1 year grants, largely for job-creating public infrastructure projects. Id. ¶ 11.

2

San Francisco receives the majority of federal funds on a reimbursement basis, meaning the

3 City first spends its own money before being repaid with federal funds. Id. ¶ 30. If federal funds were

4 withdrawn, thousands of San Francisco’s most vulnerable residents would lose access to meals,

5 medical care, and other lifesaving social services. The City would have to lay off thousands of

6 employees and cancel contracts that create thousands of additional jobs. Roads and public

7 transportation would fall into disrepair, and seismic upgrades would be postponed, rendering San

8 Francisco vulnerable during the next earthquake. Whitehouse Decl. ¶ 16.

9

Under this cloud of uncertainty and budgetary sword of Damocles, San Francisco must adopt

10 an annual budget for the fiscal year beginning July 1, 2017. San Francisco law requires the Controller

11 to submit a consolidated budget proposal to the Mayor by March 1, the Mayor to submit a balanced

12 budget to the Board of Supervisors by June 1, and the Board of Supervisors to approve a balanced

13 budget by August 1. Id. ¶ 5. To meet the June 1 deadline, the Mayor must make fundamental budget

14 decisions by May 15. Id. ¶ 6. One of the fundamental decisions the Mayor must make by May 15 is

15 whether to create a budget reserve to account for the potential loss of significant funds in the coming

16 fiscal year. Id. ¶ 8. This presents a Hobson’s choice.

17

San Francisco could place funds into reserve at the beginning of the fiscal year (i.e., July 1) or

18 could budget based on the continued receipt of federal and state funds, knowing that potentially

19 devastating cuts could come suddenly at any time. But if unanticipated cuts come mid-fiscal year, the

20 impact will be even more severe, as there will be less time to absorb the loss of funds. Id. ¶ 9.

21 Depending on the nature of the cuts, they could lead to immediate service cuts, layoffs, or cancellation

22 of contracts and associated penalties. Id. Accordingly, given the uncertainty the Executive Order

23 creates, in the absence of action by this Court or clarification from Defendants the Mayor will have no

24 real choice but to place millions of dollars into a federal and state budget reserve. Id. ¶¶ 10, 15.

25 Because there is a finite amount of money available in San Francisco’s budget, any money used to

26 fund the reserve will dollar-for-dollar decrease the funds available for programs and services in the

27 coming fiscal year. Id. ¶ 10.

28

The amount of money to be placed in the reserve will depend on the Mayor’s assessment of the

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1 likelihood, and likely extent, of potential funding cuts. Id. ¶¶ 10-11. The reserve amount will

2 therefore be affected by direction from Defendants or the Court about the intended or permissible

3 scope of the Executive Order. Id. ¶ 12. A preliminary injunction enjoining Defendants from enforcing

4 Section 9(a) (or guidance from Defendants indicating that the potential cuts to San Francisco are much

5 less severe than the Executive Order indicates) would lead to a lower reserve and allow the City to

6 have more money in its General Fund to fund critical programs and services. Id.

7

PRELIMINARY INJUNCTION STANDARD

8

To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the

9 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance

10 of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def.

11 Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, a plaintiff may obtain an injunction if it shows that

12 it has raised “serious questions going to the merits” and that the balance of hardships “tips sharply” in

13 its favor, so long as it also shows that the other two Winter factors are satisfied, i.e., that there is a

14 likelihood of irreparable injury and that the injunction is in the public interest. See Alliance for the

15 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

16

San Francisco seeks a nationwide injunction. This court has discretion to issue a nationwide

17 injunction in the circumstances presented here. See Texas v. United States, 809 F.3d 134, 188 (5th Cir.

18 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). An injunction’s scope “is dictated

19 by the extent of the violation established, not by the geographical extent of the plaintiff class.”

20 Califano v. Yamaski, 442 U.S. 682, 702 (1979). Nationwide relief is appropriate when, as here, the

21 challenged rule is invalid on its face. See Decker v. O’Donnell, 661 F.2d 598, 604 (7th Cir. 1980).

22

ARGUMENT

23 I. 24

San Francisco Is Likely To Succeed On The Merits Of Its Claims.
A. San Francisco Is Likely To Succeed On Its Arguments That Section 9(a) Of The Executive Order Is Unconstitutional.

25

Section 9(a) of the Executive Order is unconstitutional for three independent reasons. It

26 purports to assert legislative power that the Constitution vests exclusively in Congress (see Part

27 I(A)(1), infra)—and exercises that spending power in ways that even Congress may not (see Part

28 I(A)(2), infra). It commandeers local jurisdictions, violating the Tenth Amendment by requiring them

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1 to comply with ICE detainer requests. See Part I(A)(3), infra. And it is inextricably intertwined with

2 Section 1373, which is unconstitutional even when read narrowly according to its plain text. See id.8

3 As explained below, San Francisco is likely to succeed on the merits of each of these arguments.

4

1. The Funding Restriction Violates The Separation Of Powers.

5

In directing that sanctuary jurisdictions are not eligible to receive federal funds, the Executive

6 Order asserts legislative power that the Constitution vests exclusively in Congress. The Constitution

7 empowers Congress, not the President, to appropriate funding as part of the charge to “provide for the

8 . . . general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. The President may veto a bill

9 passed by Congress under its Appropriations authority, but the President may not amend or repeal only

10 a portion of an appropriation. Clinton v. City of New York, 524 U.S. 417, 438 (1998) (holding that the

11 line-item veto violates the separation of powers principle).

12

The defunding “weapon” that President Trump wields in the Executive Order is strikingly

13 similar to the line item veto declared unconstitutional in Clinton. While Congress may give the

14 Executive Branch discretion about how to spend appropriated funds, this discretion cannot be so

15 expansive that it “gives the President the unilateral power to change the text of duly enacted statutes.”

16 Id. at 447. The Funding Restriction does precisely that, by imposing a new eligibility condition on

17 some, or potentially all, congressional spending legislation. Put differently, the funding restriction is

18 “a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in

19 order to disfavor the group.” Id. at 451 (Kennedy, J., concurring). It thus functions as “a line item

20 veto and enhances the President’s powers beyond what the Framers would have endorsed.” Id.

21

Further, Defendants cannot argue that there has been any delegation of the spending power

22 here. Congress has repeatedly considered and rejected legislation to defund sanctuary cities or require

23 them to cooperate with federal immigration authorities, including proposals by the Senate in July of

24 2016 and October of 2015. See Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (as

25 rejected by Senate, Jul. 6, 2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th

26 8 Notably, at least two United States Senators have publicly expressed many of these concerns.
27 In recent letters to the heads of several federal agencies, Senators Elizabeth Warren and Edward Markey explained their view that the Executive Order is unconstitutional and requested more
28 information about whether and how the agency heads intend to comply with it. See RJN Exh. B.

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1 Cong. (as rejected by Senate, Oct. 20, 2015). “When the President takes measures incompatible with

2 the expressed or implied will of Congress, his power is at its lowest ebb . . . .” Youngstown Sheet &

3 Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). In these situations, the

4 President can act only when the executive’s power is “exclusive” and “conclusive.” Zivotofsky ex rel.

5 Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015). Executive power over federal spending is neither,

6 and the Executive Order’s attempt to control such spending must fail.

7

2. The Funding Restriction Violates The Spending Clause.

8

The Funding Restriction exercises the spending power in ways that even Congress could not.9

9

a. It Imposes New Conditions On Existing Federal Funding.

10

The plain text of the Executive Order indicates that it applies to existing awards of federal

11 funds.10 It therefore violates the Spending Clause by imposing a new condition not included in the

12 statutory language of the appropriations. “[I]f Congress intends to impose a condition on the grant of

13 federal moneys, it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

14 1, 17 (1981); see also South Dakota v. Dole, 483 U.S. 203, 207 (1987). “The legitimacy of Congress’

15 power to legislate under the spending power . . . rests on whether the State voluntarily and knowingly

16 accepts” Congress’s terms. Pennhurst, 451 U.S. at 17. “There can, of course, be no knowing

17 acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Id.

18

The Executive Order establishes a new condition for receiving federal funds—namely, that a

19 jurisdiction must comply with Section 1373, as interpreted by Defendants.11 This new condition is

20

9 If Defendants clarify that the scope of the Executive Order is narrower than it appears—e.g., 21 if it applies only to a limited subset of government funds, such as only future grants or funds directly

related to immigration—some of these arguments may no longer be applicable.

22

10 Section 9(a) uses the present tense to state that sanctuary jurisdictions “are not eligible to

23 receive Federal grants.” Executive Order § 9(a). Section 9(c) reiterates this focus on existing awards by directing the Office of Management and Budget to obtain “information on all Federal grant money

24 that currently is received by any sanctuary jurisdiction.” Id. (emphasis added).

11 This condition is ambiguous in multiple respects. As a threshold matter, courts disagree 25 about what is required to comply with Section 1373. Compare, e.g., Bologna v. City & Cty. of

San Francisco, 192 Cal. App. 4th 429, 438-39 (2011), with Steinle v. City & Cty. of San Francisco, 26 No. 16-cv-02859, 2017 WL 67064, at *11 (N.D. Cal. Jan. 6, 2017) (disagreeing “with the Bologna

court’s characterization of the scope of § 1373(a)”). The Executive Order goes a step further than any 27 judicial interpretation of Section 1373, reading the statute to require compliance with ICE detainer

requests. See p. 5, supra. Ultimately, the Executive Order vests the Secretary of Homeland Security 28

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1 unlawful for at least two reasons. First, as discussed in Part I(A)(1), supra, it violates separation of

2 powers by adding a new condition that amends appropriations made by Congress. Second, this new

3 condition was not and could not have been agreed to by San Francisco because it did not exist when

4 San Francisco accepted the $2 billion in federal funds that it is currently receiving. The statutory

5 language governing these appropriations does not reference Section 1373, ICE detainer requests, or

6 sanctuary jurisdictions. Even as the Executive Order describes it, the condition is at best unclear and

7 ambiguous. San Francisco could not have knowingly accepted this condition when it was “unaware of

8 the condition[]”—and had no reason to be aware of it—when it accepted federal funds and to this day

9 remains “unable to ascertain what is expected of it.” Pennhurst, 451 U.S. at 17.

10

b. It Imposes Conditions Unrelated To The Purpose Of The Funding.

11

The Funding Restriction also violates the requirement that conditions imposed on federal funds

12 must relate to Congress’s purpose in spending the funds. New York v. United States, 505 U.S. 144,

13 167 (1992); see also Dole, 483 U.S. at 208-09 & n.3. More specifically, a nexus must exist between

14 “the federal interest in particular national projects or programs” and any funding conditions. Dole,

15 483 U.S. at 207 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)).

16

Here, the Funding Restriction appears to condition eligibility for all federal funds on

17 compliance with Section 1373. But this condition is “unrelated to the federal interest” in the vast

18 majority of federal funding flowing to San Francisco. Of the $1.2 billion in federal funds that

19 San Francisco receives for its annual operating budget, 92% goes to entitlement programs such as

20 Medicare, Medicaid, Temporary Assistance to Needy Families, and Supplemental Nutrition Assistance

21 Programs (Rosenfield Decl. ¶ 10). For those programs the true beneficiaries are the individuals who

22 receive benefits under the program—not the City, which acts solely as a pass-through for its eligible

23 residents. These programs are unrelated to immigration or to Section 1373. Indeed, undocumented

24 immigrants are not even eligible to participate in most of these programs. Id. ¶ 29. Of the $800

25 million that San Francisco receives in multi-year grants, the vast majority goes to capital projects such

26 as building bridges and public transportation that create jobs. Again, there is no relationship between

27 with the discretion to designate sanctuary jurisdictions, requiring jurisdictions to avoid doing anything
28 that might lead the Secretary to put them on this list.

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1 Section 1373 and these projects.

2

Only a small percentage of federal funds received by San Francisco goes to local law

3 enforcement (id. ¶ 10), and the Executive Order contemplates that these are the only federal funds that

4 San Francisco might continue to receive. See Executive Order § 9(a) (directing the AG and the

5 Secretary to ensure that “sanctuary jurisdictions” are not eligible for federal grants “except as deemed

6 necessary for law enforcement purposes by the Attorney General or the Secretary”). San Francisco

7 does not concede that any or all of these funds are germane to the conditions the Executive Order

8 imposes. But even if they were, allowing San Francisco to receive these funds—while eliminating all

9 other federal funding—would turn the germaneness requirement on its head.

10

c. It Is Unconstitutionally Coercive.

11

By threatening all federal funds received by sanctuary jurisdictions, the President through the

12 Funding Restriction seeks to coerce these jurisdictions into governing according to federal dictates.

13 While the federal government “may use its spending power to create incentives for States,” it may not

14 use them to “indirectly coerce[] a State to adopt a federal regulatory system as its own.” Nat’l Fed’n

15 of Indep. Bus. v. Sebelius (“Sebelius”), 132 S. Ct. 2566, 2602 (2012) (opinion of Roberts, C.J.).

16

The Funding Restriction threatens a substantial percentage of San Francisco’s budget, and the

17 entire funding stream for certain programs and services. Federal funds constitute approximately 13%

18 of the City’s total annual operating budget, and an additional $800 million in federal multi-year grants.

19 Rosenfield Decl. ¶¶ 9, 11. In total, the Funding Restriction could implicate $2 billion in funds that San

20 Francisco expects to receive—and in many cases, has already spent. Id. ¶¶ 11, 34.

21

It would be catastrophic for San Francisco to lose all—or a substantial amount of—federal

22 funds. Id. ¶ 36; Whitehouse Decl. ¶ 16-17. Threatened funds include 100% of funding for certain

23 programs, such as Medicare, that are critical to the lives of San Francisco’s residents. Rosenfield

24 Decl. ¶ 29. Federal funds constitute approximately 30% of the budget for San Francisco’s Department

25 of Emergency Management (id. ¶¶ 25-27), 33% of the budget for San Francisco’s Human Services

26 Agency (id. ¶¶ 13-18), and nearly 40% of the budget for San Francisco’s Department of Public Health

27 (“DPH”) (id. ¶¶ 19-24), to name just a few examples. There is no way for San Francisco to make up

28 for this loss with local revenue sources. Id. ¶¶ 36-37.

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1

A threat of this magnitude “crosse[s] the line distinguishing encouragement from coercion.”

2 Sebelius, 132 S. Ct. at 2603 (opinion of Roberts, C.J.). Indeed, at least one jurisdiction has already

3 changed its policy about immigration detainers in response to the Executive Order. The day after the

4 President issued the Executive Order, Miami-Dade County Mayor Carlos Giménez instructed the

5 county’s interim corrections director to “fully cooperate” with the federal government and comply

6 with all immigration detainer requests. See RJN Exh. C.

7

In Sebelius, seven justices agreed that the federal government had unconstitutionally coerced

8 states by conditioning all future Medicaid funds upon state expansion of Medicaid. Id. at 2604

9 (opinion of Roberts, C.J.), id. at 2666-67 (opinion of Scalia, Kennedy, Thomas, and Alito, JJ.). The

10 federal coercion here is even more severe. While the proposed condition in Sebelius threatened only

11 Medicaid funding, the Funding Restriction threatens San Francisco’s eligibility for Medicaid funding

12 and all other federal funds. Further, in Sebelius the impending loss of over ten percent of a state’s

13 budget was deemed “economic dragooning that leaves the States with no real option but to acquiesce.”

14 Id. at 2605. Here, the Funding Restriction threatens over 13% of San Francisco’s budget, plus an

15 additional $800 million in off-budget grants. As in Sebelius, the Funding Restriction “is much more

16 than ‘relatively mild encouragement’—it is a gun to the head.” Id. at 2604.

17

d. It Induces San Francisco To Engage In Unconstitutional Activity.

18

Finally, Congress’s spending power “may not be used to induce the States to engage in

19 activities that would themselves be unconstitutional.” Dole, 483 U.S. at 210. Yet the Funding

20 Restriction does just that by threatening to withdraw federal funds from “sanctuary jurisdictions,”

21 which it equates with jurisdictions that refuse to comply with ICE detainer requests. See p. 5, supra.

22 ICE detainer requests are distinct from criminal warrants. They are not issued by a judge, but by

23 individual ICE agents. See 8 C.F.R. § 287.7 (a)-(b). They need not be (and often are not) based on

24 any individualized determination of probable cause that a crime has been committed.12 And, in an

25 alarming number of cases, they are erroneously issued against United States citizens. See, e.g.,

26 Morales v. Chadbourne, No. CV 12-301-M-LDA, 2017 WL 354292, at *8 (D.R.I. Jan. 24, 2017)

27

12 Notably, “mere unauthorized presence in the United States is not a crime.” Melendres v.

28

Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012) (emphasis added); see also Ariz. v. United States, 132 S. Ct. 2492, 2505 (2012) (“[I]t is not a crime for a removable alien to remain present in the [U.S.].”).

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1 (noting that 50% of the detainer requests issued by the ICE agent involved in that case were later

2 cancelled, indicating that the individual subject to the detainer was either a United States citizen or a

3 lawful permanent resident).13

4

In the absence of probable cause, detaining individuals for up to 48 hours after they would

5 otherwise have been released from custody violates the Fourth Amendment. See Morales, 793 F.3d

6 208, 215-17 (1st Cit. 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305, at *9-11 (D.

7 Or. Apr. 11, 2014) (unpublished). Accordingly, by threatening to withdraw federal funds unless

8 jurisdictions adopt blanket policies of compliance with immigration detainer requests, the Funding

9 Restriction induces—indeed coerces (see Part I(A)(2)(c), supra)—jurisdictions to engage in conduct

10 that will violate individuals’ Fourth Amendment rights. This is an unlawful use of the spending power

11 and could expose local jurisdictions like San Francisco to significant civil liability.

12

3. The Executive Order Violates The Tenth Amendment.

13

The Tenth Amendment provides that “[t]he powers not delegated to the United States by the

14 Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

15 people.” This provision prohibits the federal government from “commandeering” state and local

16 officials to help enforce federal law. See Printz v. United States, 521 U.S. 898 (1997); New York, 505

17 U.S. 144.14 But the Executive Order does precisely this, in three ways.

18

First, as discussed above, the Executive Order commandeers state and local governments by

19 attempting to use the spending power to dragoon them into acting as arms of the federal government.

20

Second, the Executive Order effectively requires state and local jurisdictions to comply with

21

22

13 See also, e.g., Mendia v. Garcia, 768 F.3d 1009, 1010 (9th Cir. 2014) (U.S. citizen spent two years in pre-trial detention as a result of the detainer); Galarza v. Szalczyk, 745 F.3d 634, 636-38 (3d

23

Cir. 2014) (U.S. citizen held in jail for three days pursuant to erroneous detainer); Davila v. N. Reg’l Joint Police Bd., 979 F. Supp. 2d 612, 622-23 (W.D. Pa. 2013), opinion vacated in part on

24

reconsideration, No. 2:13-CV-00070, 2014 WL 3735631 (W.D. Pa. July 28, 2014) (U.S. citizen held in jail overnight pursuant to erroneous detainer); Eyder Peralta, You Say You’re An American, But

25

What If You Had To Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM), available at http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-but-

26

what-if-you-had-to-prove-it-or-be-deported#foot1 (Data obtained through a Freedom of Information Act Request showed that from October 2007 through July 2015, 693 detainers issued to local law

27 enforcement agencies were lifted or resolved, with the outcome “United States Citizen Interviewed.”). 14 Local governments are treated the same as state governments for purposes of the Tenth

28 Amendment. Printz, 521 U.S. at 931 n.15.

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1 ICE detainer requests. It does so by threatening to withhold federal funds from jurisdictions that

2 refuse to comply with such requests. See generally LaCroix v. Junior, Case No. F17-376, slip op. at

3 10 (Fla. Cir. Ct. Mar. 3, 2017) (exhibit G to Eisenberg Decl.) (“[C]oercion achieved by financial

4 starvation is no less effective than coercion achieved at sword’s point. The former may take a little

5 longer than the latter; but it may be more painful, too.”). And it does so by threatening “enforcement

6 action” against any jurisdiction that the Attorney General deems to be in violation of Section 1373—

7 which the federal government reads overly broadly to require compliance with detainer requests (see

8 p. 5 & n.6, supra)—or that “has in effect a statute, policy, or practice that prevents or hinders the

9 enforcement of Federal law.” Executive Order § 9(a). This runs afoul of the Tenth Amendment.

10

In Printz, the Supreme Court considered the constitutionality of interim provisions of the

11 Brady Handgun Violence Prevention Act, which required state and local law enforcement officers to

12 make “reasonable efforts” to determine whether a prospective purchaser was barred from purchasing a

13 handgun. 521 U.S. at 904. The Court found Congress lacked the authority to impose this forced

14 participation, holding that under the Tenth Amendment, “[t]he Federal Government may . . . no[t]

15 command the States’ officers, or those of their political subdivisions, to administer or enforce a federal

16 regulatory program.” Id. at 935. Requiring state and local officials to hold an individual in their

17 custody at the behest of the federal government is an even more flagrant violation of the Constitution.

18 Compliance with ICE detainer requests would require far more of state and local officials than the

19 provision at issue in Printz. Whereas the Brady Act provision required no affirmative action by state

20 and local officials beyond making “reasonable efforts” to determine the legality of a handgun sale,

21 compliance with ICE detainer requests would require local personnel to commit significant resources

22 to jail their own residents—in their own facilities and at their own cost—on civil immigration grounds

23 at the federal government’s direct order. Hennessy Decl. ¶ 11.

24

It is therefore unsurprising that several courts and a number of state and local governments

25 have concluded that the anti-commandeering principle of the Tenth Amendment ensures that ICE

26 detainer requests cannot be mandatory and create no obligation on the part of state or local officials to

27 take any action. See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 643-45 (3d Cir. 2014); LaCroix v.

28 Junior, Case No. F17-376 (Fla. Cir. Ct. Mar. 3, 2017) (exhibit G to Eisenberg Decl.); Miranda-

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1 Olivares, 2014 WL 1414305, at *6; RJN Exh. D at 2. This Court should conclude the same.

2

Third, the Executive Order is inextricably intertwined with Section 1373. Putting aside the

3 federal government’s overly-broad interpretation of the Section, even Section 1373’s plain-text

4 mandate constitutes unlawful commandeering for the reasons discussed below. See Part I(B), infra.

5 Because both the Funding Restriction and Enforcement Directive mandate compliance with Section

6 1373, Section 9(a) of the Executive Order violates the Tenth Amendment for this reason as well.

7

B. San Francisco Is Likely To Succeed On Its Arguments Concerning The

Unconstitutionality Of—And San Francisco’s Compliance With—Section 1373.

8

9

Section 1373 provides that a “local government entity or official may not prohibit, or in any

10 way restrict, any government entity or official from sending to, or receiving from, [federal

11 immigration officials] information regarding the citizenship or immigration status . . . of any

12 individual.” 8 U.S.C. § 1373(a). Where, as here, the statutory language is clear, the law should be

13 interpreted and applied according to its plain meaning. See, e.g., Campbell v. Allied Van Lines Inc.,

14 410 F.3d 618, 620–21 (9th Cir. 2005). Accordingly, and because Section 1373 says nothing at all

15 about compliance with ICE detainer requests, Defendants’ interpretation of the section as requiring

16 jurisdictions to comply with such requests is not just unconstitutional, but is also incorrect.

17

But even interpreted narrowly, Section 1373 still violates the Tenth Amendment by

18 impermissibly directing how state and local governments function. See Part I(B)(1)-(2), infra. And

19 even it were constitutional, Defendants should be enjoined from cutting funds from San Francisco on

20 the ground that it “willfully refuse[s] to comply with [Section] 1373” (Executive Order § 9(a)) because

21 San Francisco, in fact, complies with the Section as properly interpreted. See Part I(B)(3), infra.

22

1. Section 1373 Is Facially Unconstitutional.

23

By regulating state and local governments in their capacities as sovereign governments,

24 Section 1373(a) engages in unconstitutional commandeering. Congress may not target state

25 governments in their capacities as governments. Congress may “subject state governments to

26 generally applicable laws”—“the same legislation applicable to private parties.” New York, 505 U.S.

27 at 160; see also, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985). But

28 Congress must not “require the States to govern according to Congress’ instructions” (New York, 505

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1 U.S. at 162), and thus must not regulate states “in their sovereign capacity” (Reno v. Condon, 528 U.S.

2 141, 151 (2000)). Although “a federal law of general applicability” may sometimes be permissible

3 even if it “excessively interfere[s] with the functioning of state governments,” the Tenth Amendment

4 flatly forbids federal laws where “the whole object . . . is to direct the functioning” of state

5 governments. Printz, 521 U.S. at 932 (emphasis in original).

6

The “whole object” of Section 1373(a) is to direct the functioning of state and local

7 governments. By its terms, Section 1373(a) specifically targets only “Federal, State, or local

8 government entit[ies] or official[s].” This is no accident: Section 1373(a) is meant to ensure that the

9 federal government may rely on state resources to enforce federal immigration law. Congress enacted

10 Section 1373(a) on the belief that “[e]ffective immigration law enforcement requires a cooperative

11 effort between all levels of government” (S. Rep. No. 104-249, at 19 (1996))—whether or not state

12 and local governments want to cooperate. Congress specifically sought to ensure that “[t]he

13 acquisition, maintenance, and exchange of immigration-related information by State and local

14 agencies” could be used to enforce federal law. Id. at 19-20. In seeking to conscript “information that

15 belongs to the State and is available to [state officials] only in their official capacity” from “databases

16 and records that only state officials have access to,” Congress engaged in impermissible

17 commandeering. Printz, 521 U.S. at 932 n.17.

18

The commandeering inherent in Section 1373(a) is especially grave because it targets an

19 authority basic to how a government functions—the authority to control its own officials. “[A] State

20 ‘can act only through its officers and agents.’” Nevada v. Hicks, 533 U.S. 353, 365 (2001); see also

21 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The authority to control state officials is the predicate

22 for all other exercises of state power. A state cannot maintain its sovereignty if it cannot control its

23 officials.

24

It does not matter that Section 1373(a) purports to prohibit certain actions, rather than to

25 impose affirmative duties. The Tenth Amendment does not turn on artificial distinctions between

26 negative prohibitions and affirmative obligations: laws may “direct the functioning” of state

27 governments (Printz, 521 U.S. at 932), without explicitly stating affirmative obligations. See Conant

28 v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring); Gregory, 501 U.S. at 457–64

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1 (acknowledging possible Tenth Amendment problems in a statute framed in prohibitory terms). Any

2 distinction between negative prohibitions and affirmative obligations is especially unworkable here.

3 Section 1373(a) affirmatively requires that state governments allow their officials to spend state

4 resources—including time and money—to communicate with the federal government, even when the

5 State would otherwise prohibit these communications. This affirmative obligation is underscored by

6 Defendants’ own interpretation of Section 1373(a) affirmatively to require state governments to

7 instruct their personnel about Section 1373 (Whitehouse Decl. Exh. A at 1)—and even, arguably, to

8 comply with civil detainer requests (RJN Exh. A at 7-8).

9

This concern is not merely theoretical. Section 1373(a) has, in fact, compelled San Francisco

10 to take affirmative action. San Francisco was forced to amend its Sanctuary City law to remove a

11 prohibition that once restricted its officials from using City resources to share information about

12 immigration status. San Francisco, Cal. Ordinance No. 96-16 (June 7, 2016). It was forced to add

13 language about Section 1373 to pending legislation that would prohibit using City resources to help

14 the federal government develop a registry based on religion or national origin. See RJN Exh. E at 8,

15 10. And San Francisco has been forced to expend resources to educate City personnel about the

16 contents of Section 1373(a)—as the federal government has declared it must. See, e.g., Eisenberg

17 Decl. Exh. H; Whitehouse Decl. Exh. A at 1.

18

These facts illustrate why the Second Circuit wrongly decided this issue in rejecting a facial

19 challenge to Section 1373. In City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), “the

20 City . . . chose[] to litigate this issue in a way that fails to demonstrate an impermissible intrusion on

21 state and local power to control information obtained in the course of official business or to regulate

22 the duties and responsibilities of state and local governmental employees.” Id. at 36. This Court is not

23 bound by the Second Circuit’s determination, and should reject it. The facts that were missing in City

24 of New York are fully evident here, and establish that Section 1373 does constitute “an impermissible

25 intrusion” on state sovereignty. It both imposes an affirmative obligation on states and impermissibly

26 interferes with the operation of state government.

27

2. Section 1373 Is Unconstitutional As Applied To San Francisco.

28

Even if Section 1373 could be constitutionally applied to a jurisdiction that acted solely to

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1 “frustrate[] federal programs” (City of New York, 179 F.3d at 35), it cannot be constitutionally applied

2 to a jurisdiction such as San Francisco, which has enacted confidentiality requirements in its Sanctuary

3 City law and elsewhere in order to further legitimate—and compelling—municipal interests. San

4 Francisco’s Sanctuary City law is designed to promote the local interest in maintaining the health and

5 safety of the community, not to prevent the federal government from pursuing federal objectives. As

6 San Francisco has long recognized, confidentiality is the bedrock of mutual trust between government

7 and community—trust that is necessary for the effective delivery of City services. For instance, DPH

8 generally protects identifying health information from disclosure, with only narrow exceptions not at

9 issue here. See Eisenberg Decl. Exh. I. The San Francisco Police Department (“SFPD”) recognizes

10 the importance of community policing, and the mutual trust and respect on which it depends. See S.F.

11 Admin Code § 2A.83; Eisenberg Decl. Exh. J. City agencies also comply with a host of other

12 confidentiality requirements—regarding, for example, the confidentiality of juvenile court records

13 regardless of immigration status. See Welf. & Inst. Code § 831. Such policies protect the privacy, and

14 earn the trust, of all City residents, promoting the health and safety of the City as a whole.

15

San Francisco’s broad commitment to confidentiality of personal information—embodied in

16 Chapters 12H and 12I—distinguishes its laws from the local law considered in City of New York,

17 which “single[d] out a particular federal policy for non-cooperation while allowing City employees to

18 share freely the information in question with the rest of the world.” 179 F.3d at 37. Unlike that local

19 law, San Francisco has “general polic[ies]” limiting “the disclosure of confidential information.” Id. at

20 36. These policies reflect local determinations about the best way to promote public health and safety.

21 They are not designed to frustrate federal officials from taking action in their own sovereign sphere.

22

Accordingly, the Court should enjoin Defendants from enforcing Section 1373 against, or

23 using it as the basis for withholding funds from, San Francisco.

24

3. San Francisco Complies With Section 1373 As Properly Interpreted.

25

Even if Section were 1373 constitutional, San Francisco complies with it under a proper

26 interpretation of the law. Chapter 12H generally forbids use of City resources to “assist in the

27 enforcement of Federal immigration law” and specifically prohibits using City resources to “gather or

28 disseminate information regarding release status of individuals or any other such personal

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1 information.” S.F. Admin. Code § 12H.2. “Personal information” is defined as “any confidential,

2 identifying information about an individual, including, but not limited to, home or work contact

3 information, and family or emergency contact information.” Id. § 12I.2. Neither “release status” nor

4 “personal information” includes citizenship or immigration status.15

5

Chapter 12I prohibits responding to federal immigration officials’ civil immigration detainer

6 requests and limits responses to requests for notification of release status. Id. § 12I.3. Neither Chapter

7 12H nor Chapter 12I makes mention of—let alone restricts—communicating about, maintaining, or

8 exchanging with other government entities “information regarding . . . citizenship or immigration

9 status . . . .” 8 U.S.C. § 1373(a), (b) (emphasis added). No further analysis is needed to conclude that

10 San Francisco complies with Section 1373.

11

But if there were a need to look beyond the plain text of the statutes, the legislative intent is

12 clear. Chapter 12H previously prohibited sharing information about “immigration status,” but that

13 prohibition was deleted in July 2016 to, inter alia, ensure compliance with Section 1373. The current

14 prohibition against sharing information about “release status” and “other such personal information”

15 allows employees to share information about an individual’s citizenship or immigration status.16 Thus,

16 there is no conflict with Section 1373.

17

Nor do Chapters 12H and 12I run afoul of Section 1373’s prohibition against “in any way

18 restrict[ing]” communications about citizenship or immigration status. 8 U.S.C. § 1373(a). Congress

19 chose to itemize in Section 1373 the specific activities it sought to prevent governments from

20 restricting: “sending to, or receiving from” federal immigration officials, the citizenship or

21

22

15 To the extent Chapter 12I’s definition of “personal,” “confidential, identifying information” is not exhaustive, California laws ascribe this term to information that ought to be protected because it

23

can reveal a person’s identity. See, e.g., Cal. Civ. Code § 56.05(j) (defining “personal identifying information” to include a “patient’s name, address, electronic mail address, telephone number, or

24

social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity”), id. § 1798.92(c) (providing a similar definition). This

25 does not include an individual’s citizenship or immigration status. 16 The general prohibition in Chapter 12H against “using City funds or resources to assist in the

26 enforcement of Federal immigration law” does not prohibit employees from sharing immigration

information with ICE. The more specific language about “release status” and other “personal

27 information” controls over this general language (see, e.g., Dep’t of Pub. Health v. Super. Ct., 60 Cal.

4th 940, 960 (2015)), and the 2016 amendments indicate a clear legislative intent to allow the

28 communications required by Section 1373.

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1 immigration status information of any individual. Id. Had Congress “intended to bar all restriction of

2 communication between local law enforcement and federal immigration authorities . . . it could have,”

3 but the “plain language of the statute is clear” that “[i]t did not.” Steinle, Case No. 16-CV-02859-JCS,

4 2017 WL 67064, at *11-12.

5

In short, because San Francisco’s Sanctuary City law does not prohibit or restrict officials from

6 communicating with ICE about citizenship or immigration status, San Francisco complies with Section

7 1373. Accordingly, Defendants should not be able to declare San Francisco ineligible for federal

8 funds under the Executive Order.

9 II. San Francisco Will Suffer Irreparable Harm In The Absence Of Preliminary Relief.

10

A. San Francisco Faces Imminent And Irreparable Budgetary Harm.

11

San Francisco acknowledges that the withdrawal of federal funds called for by the Executive

12 Order may or may not be imminent. Defendants could announce tomorrow that all federal funds are

13 being cut from San Francisco immediately and that the City will not be reimbursed for costs already

14 incurred in reliance on federal commitments to repay San Francisco for these projects and programs.

15 But they could also take no affirmative steps to implement the Executive Order for weeks or even

16 months. In short, the timing and extent of funding cuts under the Executive Order is not yet certain.

17 Nonetheless, San Francisco faces imminent and irreparable harm as a direct result of the uncertainty

18 created by Executive Order Section 9(a).

19

San Francisco does not know when federal funding cuts will take effect under the Executive

20 Order, or how severe those cuts will be. But if all federal funds are withdrawn, the result will be

21 devastating. Rosenfield Decl. ¶ 36; Whitehouse Decl. ¶ 16. And the impact of any cuts will be much

22 worse if they come mid-fiscal year since there will be less time to absorb the loss of funds.

23 Whitehouse Decl. ¶ 9. For example, a $1 billion cut that must be absorbed over six months would feel

24 like a $2 billion cut spread out over 12 months. Id. Also, sudden and unanticipated cuts create

25 additional harm because there is no time to plan how to manage the loss of funds. Id. Depending on

26 the nature of the cuts, they could lead to immediate service cuts, layoffs, or cancellation of contracts

27 and associated penalties. Id. To mitigate the risk inherent in this state of fiscal uncertainty, in the

28 absence of action by this Court or clarification from Defendants, the Mayor will have no real choice

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1 but to allocate millions of dollars to a budget reserve on May 15, 2017, to account for the potential loss

2 of significant funds in the coming fiscal year. Id. ¶¶ 8, 10, 15.

3

The money that is placed in reserve will not be available to fund other General Fund programs

4 and services when the new fiscal year begins on July 1, 2017. Id. ¶ 10. Thus, putting money into

5 reserve will make it impossible for San Francisco to fund other budget priorities in the coming year

6 such as reducing homelessness in San Francisco through family shelter expansions, youth housing

7 subsidies, a resource center, and homeless shelter maintenance and security. Id. ¶ 14. And once these

8 millions of dollars are taken out of play by being placed in the budget reserve, they must remain there

9 for the entire fiscal year unless and until they are needed to backfill funding cuts. Id. ¶ 13.

10

Even if San Francisco were to prevail in this lawsuit mid-fiscal year, the funds could not be

11 reallocated for other purposes until the following fiscal year. Id. Thus, even if San Francisco

12 ultimately prevails, the City and its residents will have been irreparably harmed by having been

13 deprived of these critical funds—and the programs and services they would have funded—for a

14 significant period of time. See United States v. North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C.

15 2016) (finding irreparable harm where the unavailability of federal funds was “likely to have an

16 immediate impact on [the state’s] ability to provide critical resources to the public, causing damage

17 that would persist regardless of whether funding [was] subsequently reinstated”).

18

Importantly, the amount of money to be tied up in the reserve will depend on the Mayor’s

19 assessment of the likelihood, and likely extent, of potential funding cuts. Whitehouse Decl. ¶¶ 10-11.

20 That assessment will be affected by direction from Defendants or the Court about the Executive

21 Order’s intended or permissible scope. Id. ¶ 12. A preliminary injunction enjoining Defendants from

22 enforcing Section 9(a) (or guidance from Defendants indicating that the potential cuts to San Francisco

23 are much more limited than the Executive Order indicates) would thus lead to a lower reserve and

24 allow the City to have more money to fund critical programs and services. Id.

25

B. San Francisco Faces An Imminent Deprivation Of Constitutional Rights.

26

The Ninth Circuit has repeatedly held that where a plaintiff seeking a preliminary injunction

27 demonstrates a likelihood of establishing injury to its constitutional rights, such injury, standing alone,

28 generally constitutes irreparable harm. See, e.g., Melendres, 695 F.3d at 1002 (holding that “the

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1 deprivation of constitutional rights unquestionably constitutes irreparable injury”) (internal quotation

2 marks and citation omitted); Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865, 882 (9th Cir.

3 2008), rev'd on other grounds, 562 U.S. 134 (2011). Such is the case here.

4

As shown above, San Francisco is likely to succeed on the merits of its claim that Section 1373

5 is unconstitutional because it deprives San Francisco of its sovereign rights under the Tenth

6 Amendment. But unless and until this Court grants an injunction, San Francisco will be forced—

7 against its will—to continue complying with Section 1373. This is not an abstract issue for the City.

8

Last year, the Board of Supervisors amended San Francisco’s Sanctuary City law to ensure

9 compliance with Section 1373. Right now, the Board of Supervisors is considering a proposed

10 ordinance that would prohibit San Francisco officers and employees from using City resources to

11 assist with the creation or enforcement of any registry of individuals on the basis of religious

12 affiliation, national origin, or ethnicity. See RJN Exh. E. The proposed ordinance specifically

13 exempts from its scope communications about citizenship or immigration status authorized by Section

14 1373, and allows those communications until a court of competent jurisdiction declares Section 1373

15 unconstitutional. Id. at 10. Findings for the proposed ordinance explain that it is San Francisco’s

16 position that Section 1373 is unconstitutional, but that San Francisco will continue to comply with

17 Section 1373 until it obtains court relief. Id. at 8. And within the next few months, San Francisco will

18 have to certify its compliance with Section 1373 to continue receiving funding from the Edward Byrne

19 Memorial Justice Assistance Grant Program. Whitehouse Decl. ¶ 20; id. at Exh. B.

20

In the absence of Section 1373, San Francisco would not do any of these things. And it would

21 direct its departments, agencies, commissions, officers, and employees that—as set forth in Chapter

22 12H—they may never use City funds or resources to assist in the enforcement of federal immigration

23 law. But Section 1373 prevents San Francisco from giving that clear direction and instead requires the

24 City to give a different and more confusing directive, namely, that San Francisco employees cannot

25 use City resources to assist in the enforcement of federal immigration law unless they voluntarily

26 choose to share immigration information with ICE. This exception threatens to swallow the rule and

27 make it impossible to provide clear direction to employees about when they may and may not share

28 immigration information.

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1

San Francisco has also demonstrated that it is likely to succeed on the merits of its claim that

2 Section 9(a) of the Executive Order is unconstitutional under the Separation of Powers, the Spending

3 Clause, and the Tenth Amendment. Although San Francisco has not yet been subjected to funding

4 cuts or enforcement action under the Executive Order, the City need not wait until concrete action is

5 taken to seek a preliminary injunction to prevent the constitutional harm it will suffer when that action

6 comes. To the contrary, injunctive relief is appropriate once a party has shown a “credible threat of

7 prosecution” under an unconstitutional law. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th

8 Cir. 2013) (granting a preliminary injunction based on a “a credible threat of prosecution” in a case

9 challenging a state law under the Supremacy Clause).

10

The fact that San Francisco law prohibits compliance with ICE detainers, paired with President

11 Trump’s statements singling San Francisco out as a target of his anti-Sanctuary City policies, leaves

12 no doubt that San Francisco has a credible fear of being targeted under the Executive Order.

13 Moreover, where, as here, a federal mandate would prevent a state from “‘effectuating statutes enacted

14 by representatives of its people,’” irreparable harm exists regardless of whether any direct enforcement

15 action has yet been initiated. See Tex. v. U.S., No. 7:16-cv-00054-O, 2016 WL 4426495, at *16 (N.D.

16 Tex. Aug. 21, 2016) (quoting Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997)).

17

C. San Francisco Residents And Employees Face Community Injury.

18

The Executive Order is a threat: comply with its terms or reap catastrophic consequences. This

19 has created an uncertainty that is harming both San Francisco residents and public employees. San

20 Francisco’s Police Department reports that witnesses and victims of crime are increasingly concerned

21 about contacting law enforcement due to confusion surrounding SFPD’s relationship with ICE.

22 Declaration of Peter Walsh in Support of CCSF’s Mot. for Prelim. Inj. ¶ 8. Patients of

23 San Francisco’s Department of Public Health are frightened to access local health clinics for fear that

24 their personal information will be shared with immigration officials. Declaration of Colleen Chawla in

25 Support of CCSF’s Mot. for Prelim. Inj. ¶ 7. The Executive Order puts San Francisco Sheriff

26 Department employees in a position to either comply with ICE detainer requests and violate the Fourth

27 Amendment or violate the Executive Order’s terms. Hennessy Decl. ¶ 10.

28

The Executive Order is thus preventing San Francisco from meeting an essential municipal

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1 function, protecting its residents. When victims and witnesses of crime feel unsafe contacting law

2 enforcement, all San Franciscans are less safe. When patients do not access health care, public health

3 departments are unable to treat, contain, and address public health crises. These harms are tangible,

4 ongoing, and irreparable. See Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179

5 F.3d 725, 737 (9th Cir. 1999).

6 III. The Balance Of Equities And Public Interest Favor A Preliminary Injunction.

7

It is neither equitable nor in the public’s interest to allow the President to violate the U.S.

8 Constitution. In a case against the government, the third and fourth preliminary injunction factors

9 merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). “[B]y establishing a

10 likelihood” of a constitutional violation, “Plaintiffs have also established that both the public interest

11 and the balance of the equities favor a preliminary injunction.” Ariz. Dream Act Coal. v. Brewer, 757

12 F.3d 1053, 1069 (9th Cir. 2014); see also Melendres, 695 F.3d at 1002 (finding that “it is always in the

13 public interest to prevent the violation of a party’s constitutional rights.”) (internal quotation marks

14 and citation omitted).

15

While the inquiry should end there, courts have also advised that “[i]n evaluating the balance

16 of hardships a court must consider the impact granting or denying a motion for a preliminary

17 injunction will have on the respective enterprises.” Int’l Jensen, Inc. v. Metrosound U.S.A.,

18 Inc., 4 F.3d 819, 827 (9th Cir. 1993). There can be no harm in enjoining an unconstitutional act.

19 Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010). But even apart from the constitutional

20 impermissibility of Section 1373 and the Executive Order, granting a preliminary injunction would

21 cause no actual harm to the President, the Attorney General or the Director of Homeland Security,

22 who retain the ability to enforce federal immigration law through federal agents. In contrast,

23 San Francisco faces immediate budget and planning consequences, the resolution of which could

24 impact students, seniors, bus riders, hospital patients, individuals lacking stable housing, and more, as

25 well as the general health and welfare of San Francisco as a city and county.

26

CONCLUSION

27

For the foregoing reasons, San Francisco requests that this Court grant the relief requested.

28

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1 Dated: March 8, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DENNIS J. HERRERA City Attorney RONALD FLYNN JESSE C. SMITH YVONNE R. MERÉ CHRISTINE VAN AKEN TARA M. STEELEY MOLLIE M. LEE SARA J. EISENBERG MATTHEW S. LEE NEHA GUPTA
By: /s/ Sara J. Eisenberg SARA J. EISENBERG Deputy City Attorney
Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO

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Case 3:17-cv-00485-WHO Document 21-1 Filed 03/08/17 Page 1 of 3

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

[PROPOSED] ORDER GRANTING CITY AND

Plaintiff,

COUNTY OF SAN FRANCISCO’S MOTION

19

FOR PRELIMINARY INJUNCTION

vs.

20

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

Date:

April 12, 2017

JOHN F. KELLY, Secretary of United States Time:

2:00 p.m.

22 Department of Homeland Security,

Judge:

Honorable William H. Orrick

JEFFERSON B. SESSIONS, Attorney General Dept:

Courtroom 2

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28
[Proposed] Order Granting CCSF’s Motion for PI; Case # 17-00485

Case 3:17-cv-00485-WHO Document 21-1 Filed 03/08/17 Page 2 of 3

1

On March 8, 2017, Plaintiff City and County of San Francisco (“San Francisco”) filed a

2 Motion for Preliminary Injunction (“Motion”) and a hearing on the Motion was held on Wednesday,

3 April 12, 2017, at 2:00 p.m.

4

The Court has considered the Motion and documents filed therewith, all of the papers on file in

5 this action, and the evidence and arguments presented at the hearing, hereby GRANTS San

6 Francisco’s Motion. The Court finds that each of the necessary elements for issuing a preliminary

7 injunction are met. In particular, the Court finds that San Francisco is likely to prevail on the merits of

8 its claims; absent preliminary injunction, San Francisco would be likely to suffer irreparable injury in

9 the form of budgetary, constitutional, and community injury; the balance of the equities favors San

10 Francisco; and the requested relief is in the public interest.

11

12

PRELIMINARY INJUNCTION

13

Now, therefore, it is hereby ORDERED that:

14

Defendants Donald J. Trump, President of the United States of America, John F. Kelly, in his

15 official capacity as Secretary of the United States Department of Homeland Security, Jefferson B.

16 Sessions, in his official capacity as Attorney General of the United States, the United States of

17 America, and their officers, agents, servants, employees, and attorneys, and any other persons who are

18 in active concert or participation with them, ARE HEREBY RESTRAINED AND ENJOINED from

19 committing, or performing, directly and indirectly, any and all of the following acts:

20

1. Enforcing Section 9(a) of Executive Order 13768, entitled “Enhancing Public Safety in

21 the Interior of the United States,” against any jurisdiction in the United States; and

22

2. Enforcing 8 U.S.C. Section 1373 against any jurisdiction in the United States.

23

In the alternative, Defendants Donald J. Trump, President of the United States of America,

24 John F. Kelly, in his official capacity as Secretary of the United States Department of Homeland

25 Security, Jefferson B. Sessions, in his official capacity as Attorney General of the United States, the

26 United States of America, and their officers, agents, servants, employees, and attorneys, and any other

27 persons who are in active concert or participation with them, ARE HEREBY RESTRAINED AND

28
[Proposed] Order Granting CCSF’s Motion for PI;

1

Case # 17-00485

Case 3:17-cv-00485-WHO Document 21-1 Filed 03/08/17 Page 3 of 3

1 ENJOINED from committing, or performing, directly and indirectly, any and all of the following acts:

2

1. Taking any action pursuant to Section 9(a) of Executive Order 13768, entitled

3 “Enhancing Public Safety in the Interior of the United States,” to declare San Francisco a “sanctuary

4 jurisdiction” that is ineligible for federal funds.

5

6 IT IS SO ORDERED.

7

8 Dated: ____________________ 9 10

______________________________________
WILLIAM H. ORRICK United States District Judge

11

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13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
[Proposed] Order Granting CCSF’s Motion for PI;

2

Case # 17-00485

 
 Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 1 of 9

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

DECLARATION OF BEN ROSENFIELD IN

Plaintiff,

SUPPORT OF CITY AND COUNTY OF SAN

19

FRANCISCO’S MOTION FOR

vs.

PRELIMINARY INJUNCTION

20

DONALD J. TRUMP, President of the United Date:

April 12, 2017

21 States, UNITED STATES OF AMERICA,

Time:

2:00 p.m.

JOHN F. KELLY, Secretary of United States Judge:

Honorable William H. Orrick

22 Department of Homeland Security,

Dept:

Courtroom 2

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28
Rosenfield Decl. ISO CCSF’s Motion for PI; Case # 17-00485

Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 2 of 9

1 I, Ben Rosenfield, declare as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts set

3 forth in this declaration and, if called as a witness, could and would testify competently to the matters

4 set forth below.

5

2. I am employed by the City and County of San Francisco (the “City”) as Controller. I

6 have held this position since March 2008. Prior to my appointment to this position, I was the Deputy

7 City Administrator from 2005 to 2008. Prior to that position, I served as the Mayor’s Budget Director

8 for Mayors Willie L. Brown, Jr. and Gavin Newsom, for the period from 2001 to 2005. Prior to that

9 position, I served as a Project Manager in the Controller’s Office (2000-2001) and as a Financial and

10 Policy Analyst and as a Deputy Director in the Mayor’s Budget Office (1997-2000). I have worked in

11 a variety of budget, financial planning, public finance, and general administrative positions during my

12 18 years of work for the City.

13

3. I am familiar with Executive Order 13768, dated January 25, 2017, and titled

14 “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”).

15

A. San Francisco Relies On Federal Funding For Essential Public Services.

16

4. San Francisco is home to about 865,000 residents and has a total daytime population of

17 about 1,250,000. People who live in, work in or visit San Francisco rely on—in addition to other

18 public services—law enforcement provided by the San Francisco Police Department; public

19 infrastructure projects such as roads, bridges and public transit; and the availability of high quality

20 emergency care from San Francisco General Hospital. Residents also rely on public health programs

21 such as Medi-Cal and public assistance programs like CalWORKS. While San Francisco has

22 benefitted from a recent economic boom, over 12% of San Franciscans live in poverty, and depend on

23 public assistance to make ends meet and put food on the table.

24

5. San Francisco contributes disproportionately to national economic growth and job

25 creation. Between 2010 and 2015, San Francisco ranked second among all U.S. counties in percentage

26 change in employment, generating over 125,000 new jobs, a growth rate of 28%. A significant portion

27 of this growth has been in the technology sector, a source of high wage jobs with important multiplier

28 effects and potential for future growth.

Rosenfield Decl. ISO CCSF’s Motion for PI;

1

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Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 3 of 9

1

6. The State of California, including San Francisco, pays more to the Federal government

2 in taxes than it receives in federal spending. In 2014, California residents and businesses paid a total

3 of $369.2 billion in federal business and personal income, estate, gift, and excise taxes to the Internal

4 Revenue Services and were the beneficiaries of $355.8 billion in federal expenditures. California

5 ranked 38th among states in the ratio of federal spending to collections.

6

7. In turn, San Francisco relies on federal funding to provide essential services and build

7 and maintain public infrastructure projects.

8

8. San Francisco budgets for a fiscal year that runs from July 1 to June 30. The current

9 fiscal year began July 1, 2016, and will end June 30, 2017 (“FY16-17”). The next fiscal year will run

10 from July 1, 2017 to June 30, 2018 (“FY17-18”).

11

9. San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in

12 federal funds. As shown in Figure 1, below, this is approximately 13% of the total annual operating

13 budget of $9.6 billion.

14

Figure 1

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Rosenfield Decl. ISO CCSF’s Motion for PI;

2

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Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 4 of 9

1

10. The vast majority of federal funds in the annual operating budget—approximately

2 92%—support programs in the San Francisco’s Human Services Agency and Department of Public

3 Health. Most of this funds entitlement programs such as Medicaid and Medicare, Temporary

4 Assistance for Needy Families, Supplemental Nutrition Assistance Program, Foster Care, and various

5 child welfare programs. Only a small percentage of federal funds—approximately 3%—goes to local

6 law enforcement agencies. There is no connection between the purpose of the funds and federal

7 immigration enforcement for all or almost all federal funds received by the City.

8

11. On top of the federal funds allocated in the annual operating budget, San Francisco

9 expects to receive an additional $800 million in federal multi-year grants, largely for public

10 infrastructure projects such as building bridges, roads, and public transportation investments. As

11 shown in Figure 2, below, federal funds currently committed to San Francisco total approximately $2

12 billion.

13

Figure 2

14

15

16

17

18

19

20

21

22

23

24

25

12. The programs, projects, and services described below are just a few examples of how

26 San Francisco uses federal funds.

27

28

Rosenfield Decl. ISO CCSF’s Motion for PI;

3

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Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 5 of 9

1

1. Human Services Agency

2

13. The San Francisco’s Human Services Agency (“HSA”) provides critical services to

3 San Francisco’s most vulnerable residents. It works with over 200,000 residents each year to provide

4 needed nutrition assistance, income support, and child welfare services, among other support services.

5 Approximately one in four San Franciscans is a client of HSA. HSA also manages numerous

6 programs that serve young children and their families, older adults, and individuals with disabilities.

7 HSA relies on federal funding to provide these services.

8

14. For example, the In-Home Supportive Services (“IHSS”) program enables about 23,000

9 low-income elderly, disabled, or blind San Franciscans to live safely in their own homes and

10 communities. For some recipients, the IHSS program reduces acute health care and institutional long-

11 term care costs that would otherwise be incurred by the state and Federal governments through Medi-

12 Cal. About 19,000 individuals work as independent providers for IHSS recipients. For FY16-17, the

13 County’s IHSS program is budgeted to receive approximately $64 million in federal funds, accounting

14 for nearly 40% of the program’s budget. Virtually all of these funds are provided as reimbursements.

15 This amount does not include the approximately $200 million of federal funds that the State of

16 California pays directly to independent IHSS providers.

17

15. HSA also provides financial assistance and services to San Francisco’s neediest

18 residents, including children and families living in poverty. For example, through California Work

19 Opportunity and Responsibility to Kids (CalWORKS), HSA provides financial assistance, family

20 stabilization, case management, vocational counseling, job readiness assistance, behavioral health

21 treatment, transportation, and other services designed to help parents of low-income families meet

22 welfare-to-work requirements, secure and retain employment, and become self-sufficient.

23 San Francisco’s CalWORKS program is budgeted to receive approximately $58 million in federal

24 funding in FY16-17, accounting for over 50% of the County’s CalWORKS and Welfare-to-Work

25 FY16-17 budget. Virtually all of these funds are provided as reimbursements.

26

16. HSA offers numerous other social services, including child welfare programs and

27 services, early childhood care and education services, adult protective services and a County Veteran’s

28 Service Office that helps veterans and their families receive benefits to which they are entitled.

Rosenfield Decl. ISO CCSF’s Motion for PI;

4

Case # 17-00485

Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 6 of 9

1

17. In FY16-17, HSA expects to receive a total of approximately $286 million in federal

2 funding. This represents approximately 33% of its FY16-17 budget.

3

18. HSA directly employs nearly 2,000 employees. It also funds hundreds of additional

4 jobs through contracts to service providers. Loss of federal funds would threaten many of these jobs,

5 as well as the underlying services, that depend on HSA funds.

6

2. Department of Public Health

7

19. The Zuckerberg San Francisco General Hospital (“ZSFGH”) is a licensed general acute

8 care hospital owned and operated by San Francisco’s Department of Public Health (“DPH”). ZSFGH

9 has 284 beds and provides a full complement of inpatient, outpatient, emergency, skilled nursing,

10 diagnostic, mental health, and rehabilitation services for adults and children. ZSFGH is the largest

11 safety net provider in San Francisco and is the designated trauma center for the 1.5 million residents of

12 San Francisco and northern San Mateo County. In FY16-17, ZSFGH expects to receive

13 approximately $450 million in federal funding for Medi-Cal and Medicare patient services. This

14 accounts for over half of the ZSFGH FY16-17 budget of nearly $840 million. Virtually all of these

15 funds are provided as reimbursements.

16

20. Laguna Honda Hospital provides a full range of skilled nursing services to adult

17 residents of San Francisco who are disabled or chronically ill, including specialized care for those with

18 wounds, head trauma, stroke, spinal cord and orthopedic injuries, HIV/AIDS, and dementia. In FY16-

19 17, Laguna Honda Hospital expects to receive approximately $160 million in federal funding for

20 Medi-Cal and Medicare patient services, accounting for nearly 60% of its budget. Virtually all of

21 these funds are provided as reimbursements.

22

21. DPH also provides direct services through its primary care clinics, HIV/AIDS health

23 services, mental health and substance abuse treatment, housing and homelessness assistance, maternal

24 and child healthcare, and jail health services.

25

22. Additionally, the DPH Population Health Division addresses public health concerns,

26 including consumer safety, health promotion, and disease prevention. DPH also monitors threats to

27 public health.

28

Rosenfield Decl. ISO CCSF’s Motion for PI;

5

Case # 17-00485

Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 7 of 9

1

23. Overall, in FY16-17, DPH expects to receive approximately $800 million in federal

2 funding. This represents almost 40% of the Department’s FY16-17 budget.

3

24. DPH has approximately 6,800 full-time equivalent employees, and it funds hundreds of

4 additional jobs through contracts to service providers. Loss of federal funds would threaten many of

5 the thousands of jobs that depend on DPH funds, as well as the services that DPH provides.

6

3. Department of Emergency Management

7

25. The Department of Emergency Management (“DEM”) leads San Francisco in planning,

8 preparedness, communication, response, and recovery for daily emergencies, large scale citywide

9 events, and major disasters. DEM is the vital link in emergency communication between the public

10 and first responders.

11

26. One of the programs DEM administers is the Bay Area Urban Areas Security Initiative

12 (“UASI”), which sustains and improves regional capacity to prevent, mitigate, respond to, and recover

13 from terrorist attacks and catastrophic disasters. UASI funds training exercises and regional

14 emergency management and disaster response. This program is funded entirely by federal funds.

15

27. In FY16-17, DEM anticipates receiving about $25 million in federal funding, mostly

16 supporting the UASI program. This represents nearly 30% of the Department’s FY16-17 budget.

17

B. Federal Funding Streams

18

28. San Francisco receives federal funds directly from the Federal government, as well as

19 indirectly through the State of California and other pass-through entities. For FY16-17,

20 San Francisco’s budget includes over $1.1 billion in pass-through funds, the vast majority of which is

21 passed through the State of California. If Defendants nonetheless cut off federal funds to California,

22 this could result in the loss of pass-through funds to San Francisco.

23

29. San Francisco receives federal funds as payments for entitlement programs, as well as

24 through grants. These entitlement programs include Medicare, Medicaid (known as Medi-Cal in

25 California), Temporary Assistance for Needy Families, Supplemental Nutrition Assistance Program,

26 Foster Care, and various child welfare programs. Medicare is funded entirely with federal funds.

27 Undocumented immigrants are not eligible to receive benefits from Medicare and most other

28

Rosenfield Decl. ISO CCSF’s Motion for PI;

6

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Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 8 of 9

1 entitlement programs. Approximately 80% of the federal funds budgeted for FY16-17 are for

2 entitlement programs.

3

30. San Francisco receives most federal funds—for both grants and entitlement programs—

4 as reimbursements. San Francisco is currently providing services and benefits that the Federal

5 government has agreed to reimburse. San Francisco is also building major transit expansions and other

6 public infrastructure projects, as well as running programs across a variety of San Francisco agencies,

7 based on the Federal governments’ commitment to pay for these projects and programs. The Executive

8 Order calls into question whether the Federal government will in fact reimburse San Francisco for

9 these funds.

10

31. Since the Executive Order issued, San Francisco has received inquiries from credit

11 rating agencies about the impact of the Executive Order on San Francisco’s finances, given the

12 importance of federal funds on the City’s provision of public services.

13

32. The City requests a rating from credit rating agencies each time bonds are issued. A

14 rating is assigned based on the security or repayment source, general finances, the economy, debt and

15 long-term liabilities, and financial management.

16

33. San Francisco's next bond issuance is scheduled for the first week of May 2017. If

17 credit rating agencies downgrade their assessment of San Francisco, it will increase San Francisco’s

18 borrowing costs and thereby reduce funds available for direct public services.

19

C. Coercive Effect Of The Executive Order

20

34. San Francisco currently faces the prospect of sweeping cuts in necessary federal

21 funding. The Executive Order threatens not to pay San Francisco over $2 billion in federal funds that

22 is money already spent by San Francisco, money San Francisco is spending today, and money San

23 Francisco has reasonably relied on receiving.

24

35. The concern about losing federal funds is so acute that the Board of Supervisors has

25 established the Budget and Finance Federal Select Committee, a new committee that will consider

26 issues related to the possible loss of federal funds as a result of the Executive Order and other federal

27 action. This is the first new select committee that the Board of Supervisors has established during the

28 last decade.

Rosenfield Decl. ISO CCSF’s Motion for PI;

7

Case # 17-00485

Case 3:17-cv-00485-WHO Document 22 Filed 03/08/17 Page 9 of 9

 
 Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 1 of 13

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

DECLARATION OF MELISSA WHITEHOUSE

Plaintiff,

IN SUPPORT OF CITY AND COUNTY OF

19

SAN FRANCISCO’S MOTION FOR

vs.

PRELIMINARY INJUNCTION

20

DONALD J. TRUMP, President of the United Date:

April 12, 2017

21 States, UNITED STATES OF AMERICA,

Time:

2:00 p.m.

JOHN F. KELLY, Secretary of United States Judge:

Honorable William H. Orrick

22 Department of Homeland Security,

Dept:

Courtroom 2

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28
Whitehouse Decl. ISO CCSF’s Motion for PI; Case # 17-00485

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 2 of 13

1 I, Melissa Whitehouse, declare as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts set

3 forth in this declaration and, if called as a witness, could and would testify competently to the matters

4 set forth below.

5

2. I am the Mayor's Budget Director for the City and County of San Francisco. Among

6 many policy and budgetary responsibilities, my main charge is developing and submitting the City’s

7 balanced budget each June. Over the course of six years with the Mayor’s Office of Public Policy and

8 Finance, I have worked on six adopted budgets and multiple long-term financial planning documents,

9 including the City’s Five-Year Financial Plan and Ten Year Capital Plan.

10

3. I am familiar with Executive Order 13768, dated January 25, 2017, and titled

11 “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”).

12

4. The Executive Order threatens San Francisco with the loss of federal funds. The

13 threatened cuts are unrelated to immigration enforcement and counter to the goals of public safety

14 stated in the Executive Order, and they would have far reaching consequences. As the Mayor’s Budget

15 Director, I must decide how to handle this possible loss of funds in the budget for the fiscal year

16 beginning on July 1, 2017.

17

5. San Francisco has already begun the seven-month process of adopting the annual

18 budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the

19 Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco

20 departments with detailed guidance on the preparation of departments’ budget requests. Most San

21 Francisco departments held public hearings on their budget proposals in January and February and

22 submitted their budget requests for the coming fiscal year to the Controller by February 21.

23 San Francisco law requires the Controller to submit a consolidated budget proposal to the Mayor by

24 March 1, the Mayor to submit a balanced budget to the Board of Supervisors by June 1, and the Board

25 of Supervisors to approve a balanced budget by August 1.

26

6. To meet the June 1 deadline, the Mayor must make fundamental budget decisions by

27 May 15, and input these decisions into San Francisco’s budget software by May 24. During the last

28 week of May, the Controller’s Office reconciles and confirms all financial calculations in the Mayor’s

Whitehouse Decl. ISO CCSF’s Motion for PI;

1

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Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 3 of 13

1 proposed budget, while the Mayor’s Budget Office finalizes the narrative publication that accompanies

2 the proposed budget.

3

7. The budget for the fiscal year beginning July 1, 2017, will be approximately $10

4 billion, approximately $5 billion of which is in San Francisco’s General Fund. Money in San

5 Francisco’s General Fund is used to support public services such as public health, human services,

6 police and fire services, and public works. Approximately $2 billion of General Fund money is legally

7 dedicated for specific purposes, leaving approximately $3 billion in discretionary funds. The

8 remainder of the budget is comprised of self-supporting activities at San Francisco’s enterprise

9 departments, which focus on city-related business operations and include the Port, the Municipal

10 Transportation Agency, the Airport, the Public Utilities Commission, and others. The use of funds in

11 these operations is legally restricted and cannot be redirected to backfill a shortfall in the General

12 Fund.

13

8. One of the fundamental budget decisions the Mayor must make by May 15, 2017, is

14 whether to create a budget reserve to account for the possible loss of federal and state funds in the

15 coming fiscal year. This presents a Hobson’s choice. San Francisco, facing possible reductions, could

16 place funds into reserve at the beginning of the fiscal year, harming the public by reducing the amount

17 of money in San Francisco’s General Fund. Or San Francisco could budget based on the continued

18 receipt of federal and state funds, knowing that cuts could come suddenly, outside of the budget

19 process.

20

9. If unanticipated cuts come mid-year, the General Fund will take an even bigger hit at

21 that time, as there will be less time to absorb the loss of funds. For example, a $1 billion cut that must

22 be absorbed over six months would feel like a $2 billion cut spread out over 12 months. Additionally,

23 sudden and unanticipated cuts create additional harm because there is no time to plan how to manage

24 the loss of funds. Depending on the nature of the cuts, they could lead to immediate service cuts,

25 layoffs, or cancellation of contracts and associated penalties.

26

10. If current levels of uncertainty remain by May 15, 2017, the Mayor will be forced to

27 propose a federal and state budget reserve. The final amount of the reserve will depend on the Mayor’s

28 assessment of the amount of funding at risk and the likelihood that federal or state funds will be cut.

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2

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Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 4 of 13

1 Money used to fund the reserve is money that will not be available for General Fund programs and

2 services.

3

11. A portion of the federal and state budget reserve will reflect the possible loss of federal

4 funds that could result from the Executive Order. Assuming the Executive Order is still in place by

5 May 15, 2017, and there is no further clarity about the funds at risk, the Mayor must account for the

6 possibility that some or all applications of the Executive Order might be upheld, and set the reserve

7 accordingly.

8

12. The reserve amount will be affected by direction from Defendants or the Court about

9 the intended or permissible scope of the Executive Order. A preliminary injunction enjoining

10 Defendants from enforcing Section 1373 or Section 9(a) of the Executive Order would lead to a lower

11 reserve and allow the City to have more money in its General Fund to fund critical programs and

12 services.

13

13. A May 15, 2017, decision to set the reserve at a specified amount will have a real world

14 impact when the new fiscal year begins on July 1, 2017. Beginning on this date, funds allocated for the

15 reserve will sit in the reserve instead of being available for General Fund services and programs. Once

16 funds are placed in a federal and state budget reserve, they will remain there for the entire fiscal year

17 unless they are needed to backfill federal or state funding cuts.

18

14. The Mayor must make a trade-off between putting money into a reserve and using it for

19 other San Francisco priorities, some of which are currently unfunded. For instance, the Department of

20 Homelessness and Supportive Housing needs an additional $19.5 million in the next two fiscal years

21 to make an impact in reducing homelessness in San Francisco. This money would fund a family

22 shelter expansion, youth housing subsidies, a resource center, and shelter maintenance and security. A

23 reserve would set money aside instead of using it for purposes like this.

24

15. While the exact amount has not yet been determined, the reserve will be in the millions,

25 not billions. It will reflect just a small portion of the federal funds received by San Francisco. The

26 reserve will help San Francisco maintain budgeted operations if it loses a relatively small amount of

27 federal funding. It will not, however, be adequate to compensate for the loss of significant federal

28 funds.

Whitehouse Decl. ISO CCSF’s Motion for PI;

3

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Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 5 of 13

1

16. It would decimate San Francisco to lose all federal funds. Thousands of San

2 Francisco’s most vulnerable residents would lose access to meals, medical care and other lifesaving

3 social safety net services. Required reductions in police, fire, and emergency medical response

4 functions would impair core public safety services for those that work, visit, or live in the City. The

5 City would have to lay off thousands of employees and cancel contracts that create thousands of

6 additional jobs. Roads, public transportation, and other infrastructure necessary to support the City and

7 region’s economy would fall into disrepair, causing longer-term damage beyond San Francisco’s

8 borders. Seismic upgrades would be postponed, rendering San Francisco vulnerable during the next

9 earthquake.

10

17. Even a mid-year loss of, for illustrative purposes, 10% of annual federal funds would

11 have a significant negative impact on the safety of our City and residents. A cut of $120 million would

12 require the Mayor to make significant reductions to critical government services and spending.

13 Specifically, mid-year cuts of this magnitude would require reductions in the number of first

14 responders, including police officers, firefighters, paramedics, and 911 operators. Our Muni bus and

15 train system would experience significant crowding and delays due to reductions in service and

16 deferral of vehicle maintenance. The Bay Area’s regional economy depends on a functioning Muni

17 system, and service cuts would significantly hamper our economic growth. Furthermore, infrastructure

18 safety would be compromised, as the City would be forced to consider cuts to road repaving, building

19 inspection services, and fire safety programs. The Mayor has significantly increased the City’s

20 investment in homeless services with a goal of reducing San Francisco’s street homeless population,

21 including ending chronic veterans’ homelessness by 2018. San Francisco’s progress in housing the

22 homeless – and especially housing homeless veterans – would be imperiled by unexpected mid-year

23 reductions of this magnitude. Furthermore, San Francisco would likely be forced to cut social service

24 safety net programs such as senior meal programs, services for low-income children, violence

25 prevention services and programs for domestic violence survivors.

26

18. One of the federal grants San Francisco currently receives is from the Edward Byrne

27 Memorial Justice Assistance Grant Program (“JAG”), administered by the Attorney General’s Office

28

Whitehouse Decl. ISO CCSF’s Motion for PI;

4

Case # 17-00485

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 6 of 13

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 7 of 13
EXHIBIT A

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 8 of 13
OFFICE OF JUSTICE PROGRAMS GUIDANCE REGARDING COMPLIANCE WITH 8 U.S.C. § 1373
1. Q. What does 8 U.S.C. § 1373 require?
A. Title 8, United States Code, Section 1373 (Section 1373) addresses the exchange of information regarding citizenship and immigration status among federal, state, and local government entities and officials. Subsection (a) prevents federal, state and local government entities and officials from “prohibit[ing] or in any way restrict[ing]” government officials or entities from sending to, or receiving from, federal immigration officers information concerning an individual’s citizenship or immigration status. Subsection (b) provides that no person or agency may “prohibit, or in any way restrict,” a federal, state, or local government entity from (1) sending to, or requesting or receiving from, federal immigration officers information regarding an individual’s immigration status, (2) maintaining such information, or (3) exchanging such information with any other federal, state, or local government entity. Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information. Rather, the statute prohibits government entities and officials from taking action to prohibit or in any way restrict the maintenance or intergovernmental exchange of such information, including through written or unwritten policies or practices.
Your personnel must be informed that notwithstanding any state or local policies to the contrary, federal law does not allow any government entity or official to prohibit the sending or receiving of information about an individual’s citizenship or immigration status with any federal, state or local government entity and officials.
2. Q. May a state make a subgrant to a city that the state knows to be violating an applicable law or regulation (e.g. Section 1373), or a programmatic requirement?
A. No. A JAG grantee is required to assure and certify compliance with all applicable federal statues, including Section 1373, as well as all applicable federal regulations, policies, guidelines and requirements. This requirement passes through to any subgrants that may be made and to any subgranteees that receive funds under the grant.
3. Q. Is there a specific report or source BJA is using to determine whether a jurisdiction has violated an applicable Federal law (e.g. Section 1373)?
A. The Office of Justice Programs (OJP) will take seriously credible evidence of a violation of applicable Federal law, including a violation of Section 1373, from any source. In the ordinary course, OJP will refer such evidence to the Department of Justice’s Office of the Inspector General for appropriate action.

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 9 of 13
4. Q. How would a determination that a subgrantee is in violation of federal law affect the state’s designation and ability to receive future awards?
A. A grantee is responsible to the federal government for the duration of the award. As the primary recipient of the award, the grantee is responsible for ensuring that subgrantees assure and certify compliance with federal program and grant requirements, laws, or regulations (e.g. Section 1373). If a grantee or subgrantee has policies or practices in effect that violate Section 1373, the grantee or subgrantee will be given a reasonable amount of time to remedy or clarify such policies to ensure compliance with applicable law. Failure to remedy any violations could result in the withholding of grant funds or ineligibility for future OJP grants or subgrants, or other administrative, civil, or criminal penalties, as appropriate. Our goal is to ensure that JAG grantees and subgrantees are in compliance with all applicable laws and regulations, including Section 1373, not to withhold vitally important criminal justice funding from states and localities.
5. Q. Does the “JAG Sanctuary Policy Guidance” notice apply to all active grants?
A. The Policy Guidance applies to all JAG grantees and subgrantees.
6. Q. What should a state be doing to ensure that subgrantees are complying with the legal requirements for receiving JAG funds?
A. The state must comply with all of the requirements of 2 C.F.R. § 200.331. See also Section 3.14 (Subrecipient Monitoring) of the Department of Justice Financial Guide.
7. Q. The “JAG Sanctuary Policy Guidance” cited Section 1373. Are there other components of Title 8 of the United States Code that are required for compliance?
A. All grantees are required to assure and certify compliance with all applicable federal statutes, regulations, policies, guidelines, and requirements. States may wish to consult with their legal counsel if they have any questions or concerns as to the scope of this requirement.

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 10 of 13
EXHIBIT B

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 11 of 13
OFFICE OF JUSTICE PROGRAMS ADDITIONAL GUIDANCE REGARDING COMPLIANCE WITH 8 U.S.C. § 1373
1. Why is OJP using Byrne/JAG grant funds to enforce 8 U.S.C. § 1373?
Authorizing legislation for the Byrne/JAG grant program requires that all grant applicants certify compliance both with the provisions of that authorizing legislation and all other applicable federal laws. The Office of Justice Programs has determined that 8 U.S.C. § 1373 (Section 1373) is an applicable federal law under the Byrne/JAG authorizing legislation. Therefore, all Byrne/JAG grant applicants must certify compliance with all applicable federal laws, including Section 1373, as part of the Byrne/JAG grant application process.
2. Does OJP’s guidance on 8 U.S.C. § 1373 impact FY 2016 funding?
No FY 2016 or prior year Byrne/JAG or SCAAP funding will be impacted. However, OJP expects that JAG and SCAAP recipients will use this time to examine their policies and procedures to ensure they will be able to submit the required assurances when applying for JAG and SCAAP funding in FY 2017. As previously stated, our goal is to ensure that our JAG and SCAAP recipients are in compliance with all applicable laws and regulations, including Section 1373, not to withhold vitally important criminal justice funding from states and localities like yours.
3. What is the process of determining if a recipient of JAG or SCAAP funds is not in compliance with 8 U.S.C. § 1373?
As OJP has previously stated, our goal is to ensure that JAG and SCAAP recipients are in compliance with all applicable laws and regulations, including Section 1373. If OJP becomes aware of credible evidence of a violation of Section 1373, the recipient must agree to undertake a review to validate its compliance with 8 U.S.C. § 1373. If the recipient determines that it is in compliance with Section 1373 at the time of review, then it must submit documentation that contains a validation to that effect and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. If the recipient determines that it is not in compliance with Section 1373 at the time of review, then it must take sufficient and effective steps to bring it into compliance and submit documentation that details the steps taken, contains a validation that the recipient has come into compliance, and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. Failure to remedy any violations could result in a referral to the Department of Justice Office of the Inspector General, the withholding of grant funds or ineligibility for future OJP grants or subgrants, or other administrative, civil, or criminal penalties, as appropriate.
4. What will happen if a recipient of JAG or SCAAP funds is found to be out of compliance with 8 U.S.C. § 1373?
If a recipient is found out of compliance with Section 1373, the recipient must take sufficient and effective steps to bring it into compliance and submit documentation that details the steps taken, contains a validation that the recipient has come into compliance, and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. Failure to remedy any violations could result in a referral to the Department of Justice Inspector

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 12 of 13
General, the withholding of grant funds or ineligibility for future OJP grants or subgrants, suspension or termination of the grant, or other administrative, civil, or criminal penalties, as appropriate.
As previously stated, our goal is to ensure that our JAG and SCAAP recipients are in compliance with all applicable laws and regulations, including Section 1373, not to withhold vitally important criminal justice funding from states and localities like yours.
5. Does OJP expect State Administering Agencies or their subgrantees to submit additional certifications specific to 8 U.S.C. § 1373?
No, OJP does not expect grantees to submit additional assurances in FY 2016, nor does OJP expect grantees to require additional assurances from subgrantees, unless the grantees choose to do so. However, OJP expects that JAG grantees and subgrantees will use this time to examine their policies and procedures to ensure they will be able to submit the required assurances when applying for JAG funding in FY 2017.
6. Will a locality risk its entire Byrne/JAG funding if it refuses to certify compliance with federal law, including 8 U.S.C. § 1373?
Yes, a JAG grantee is required to assure and certify compliance with all applicable federal statutes, including Section 1373, as well as all applicable federal regulations, policies, guidelines and requirements, as a prerequisite to obtaining funding. OJP expects that JAG recipients will use this time to examine their policies and procedures to ensure they will be able to submit the required assurances when applying for JAG funding in FY 2017. By providing this additional guidance and the prior guidance on 8 U.S.C. § 1373, the Department has made clear that its goal is to ensure that our JAG and SCAAP recipients are in compliance with all applicable laws and regulations, including Section 1373, not to withhold vitally important criminal justice funding from states and localities like yours.
7. Will a State risk its entire Byrne/JAG funding if a subgrantee is found to be out of compliance?
No, only the jurisdiction that fails to comply with Section 1373 is at risk for not being funded after being provided an opportunity to correct its policies or practices. It is the State’s legal responsibility as the prime grantee to monitor its subgrantees adequately and take appropriate action if 1) a subgrantee does not certify compliance with Section 1373, or 2) the State becomes aware (after making the subaward) of credible evidence of a violation of Section 1373 by a subgrantee. In general, however, a subgrantee’s continuing violation would not ordinarily result in imposition of penalties against the State, or put the State’s entire Byrne/JAG funding at risk. If the State disburses funds to an ineligible subgrantee, however, such that the State itself could be said to have participated in the violation (e.g. by having made the subaward knowing that the subgrantee was ineligible) or failed to take appropriate action to remedy a violation, then that State would be responsible for repayment of the dispersed funding.
In addition, if OJP becomes aware of credible evidence that a subgrantee may be in violation of Section 1373, OJP will forward that evidence to the State, and the State will need to take steps to determine if the subgrantee is in violation, and (if it is) to require the subgrantees to take

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 13 of 13
sufficient and effective steps to bring it into compliance and submit documentation that details the steps taken, contains a validation that the subgrantee has come into compliance, and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation.
Additional guidance regarding compliance with Section 1373 can be found at: Question and Answer document provided to all JAG grantees and SCAAP recipients on July 7, 2016: https://www.bja.gov/ProgramDetails.aspx?Program_ID=59. DOJ Office of the Inspector General Memorandum posted on July 28, 2016 at: https://oig.justice.gov/reports/2016/1607.pdf.

 
 Case 3:17-cv-00485-WHO Document 24 Filed 03/08/17 Page 1 of 3

1 DENNIS J. HERRERA, StateBar#139669

City Attorney

2 JESSE C. SMITH, StateBar#122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City J\ttorney

4 YVONNE R. MERE, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar#241755

TARA M. STEELEY, StateBar#231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, StateBar#269303

7 MATTHEWS. LEE, StateBar#295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

.

.

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

DECLARATION OF SHERIFF VICKI

Plaintiff,

HENNESSY IN SUPPORT OF CITY AND

19

COUNTY OF SAN FRANCISCO'S MOTION

vs.

FOR PRELIMINARY INJUNCTION

20 DONALD J. TRUMP, President of the United Date:

April 12, 2017

21 States, UNITED STATES OF AMERICA,

Time:

2:00p.m.

JOHN F. KELLY, Secretary of United States Judge:

Honorable William H. Orrick

22 Department of Homeland Security,

Dept:

JEFFERSON B. SESSIONS, Attorney General

Courtroom2

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28
Hennessy Deel. ISO CCSF's Motion for PI; Case # 17-00485

Case 3:17-cv-00485-WHO Document 24 Filed 03/08/17 Page 2 of 3

1 I, Vicki Hennessy, declare as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts set

3 forth in this declaration and, if called as a witness, could and would testify competently to the matters

4 set forth below.

5

2. I am the Sheriff of the City and County of San Francisco ("San Francisco"). I joined

6 the Sheriff's Department ("Department") in 1975, more than 30 years ago. In 1983, I was promoted to

7 Captain within the Department, becoming the youngest Captain in California law enforcement. In

8 1998, I became Chief Deputy. As Chief Deputy, I managed each of the three divisions of the

9 Department at various times: Custody Division, which was the division responsible for the

10 administration and operation of the jails, Hospital Ward, and Classification Unit; Administration and

11 Support Division which was responsible for planning, personnel, policy formation, and department

12 resources; and Field Operations Division, which was responsible for the Emergency Services Unit,

13 department security operations at the city hospital campuses and City Hall. I also worked with the

14 Department of Emergency Management on preparation, response and recovery for qisaster response.

15

3. From mid-2007 to early 2009, while still a Chief Deputy, I was on loan to the

16 Department of Emergency Management as the Deputy Director in charge of Emergency Services.

17 From March of 2009 to the end of 2010, while still a Chief Deputy, I served as the Director of the San

18 Francisco Department of Emergency Management, where I oversaw citywide emergency planning as

19 well as 911 dispatch for police, fire, and medical emergency.

20

4. In March of 2012, I was appointed by Mayor Edwin Lee to serve as interim Sheriff for

21 seven months. I subsequently ran for and was elected to the position of Sheriff in November of 2015

22 and began my term on January 8, 2016.

23

5. As Sheriff, I am responsible for operating the County jail system; enforcing the law;

24 executing orders and legal processes issued by California courts, the San Francisco Board of

25 Supervisors, and other authorized entities; and providing security to courthouses, other public

26 buildings, and public officials.

27

6. I am familiar with San Francisco's Sanctuary City laws, found in San Francisco

28 Administrative Code Sections 12H and 121. San Francisco Sanctuary City laws encourage individuals

Hennessy Deel. ISO CCSF's Motion for PI;

1

Case # 17-00485

·

Case 3:17-cv-00485-WHO Document 24 Filed 03/08/17 Page 3 of 3

1 to be candid and forthcoming with law enforcement. They facilitate trust between law enforcement

2 and the public. They create an environment where individuals can feel comfortable reporting crimes,

3 serving as witnesses, and assisting with investigat,ions.

4

7. In accordance with those laws, the Department maintains policies that limit notifying

5 immigration officials of an individual's release date.

6

8. I am familiar with Executive Order 13768, dated January 25, 2017, and titled

7 "Enhancing Public Safety in the Interior of the United States" (the "Executive Order").

8

9. Since the issuance of the Executive Order, ICE has significantly increased the number

9 of voluntary requests for notification (Form I-247N), and voluntary requests for transfer and/or (Form

IO I-247X), which may include requests for detention. Since the beginning of the year, these voluntary

11 requests by ICE more than doubled between January and February. In January 2017 we received a

12 total of 12 in 31 days. In February we received a total of 28 in 28 days.

13

10. Presently, the Department does not detain any individual based upon a voluntary

14 request from ICE. The reason for that is in part the risk-identified by the California Attorney

15 General in a June 25, 2014 statewide bulletin to local law enforcement-that such detentions may

16 violate the Fourth Amendment, as well as the Department's need to comply with state and local laws.

17

11. If San Francisco were to begin complying with ICE detainer requests, not only would

18 that result in an increase in detainee shelter, food, and space costs, but it would require additional

19 administration, training, and potentially additional housing.

20

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

21 was executed on March 7, 2017 at San Francisco, California.

22

23

24 SHERIFF VICKI HENNESSY
25

26

27

28

Hennessy Deel. ISO CCSF's Motion for PI;

2

Case # 17-00485

 
 Case 3:17-cv-00485-WHO Document 25 Filed 03/08/17 Page 1 of 3

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMiTH, State Bar #1225 17

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City 4ttorney

4 YVONNE R. MERE, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar#251404

SARA J. EI$ENRERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

$ Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Canton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415)554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CiTY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN FRANCISCO,

Case No.3: 17-cv-00485-WHO

18 Plaintiff,
19 vs.
20

DECLARATION OF COMMANDER PETER WALSH IN SUPPORT Of CITY AND COUNTY OF SAN FRANCISCO’S MOTION FOR PRELIMINARY INJUNCTION

DONALD J. TRUMP, President of the United Date:

21 States, UNITED STATES OF AMERICA,

Time:

JOHN F. KELLY, Secretary of United States Judge:

22 Department of Homeland Security,

Dept:

JEFFERSON B. SESSIONS, Attorney General

April 12, 2017 2:00 p.m.
Honorable William H. Orrick Courtroom 2

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

2$
Walsh Deci. ISO CCSF’s Motion for P1; Case # 17-00485

Case 3:17-cv-00485-WHO Document 25 Filed 03/08/17 Page 2 of 3

1 I, Peter Walsh, declare as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts set

3 forth in this declaration and, if called as a witness, could and would testify competently to the matters

4 set forth below.

5

2. I am currently a Commander with the San Francisco Police Department (“SfPD”)

6 working as a Special Assistant to the Chief of Staff. In that role I oversee the Risk Management

7 Office as well as the operations and personnel in the Internal Affairs—Criminal Unit, Internal

8 Affairs—Administrative Unit, Body Camera Unit, Early Intervention Systems, and the Legal Division.

9 I am also responsible for keeping abreast of legislative issues and how federal and state laws might

10 affect SFPD.

11

3. 1 am a 25 year veteran of the SFPD. During my tenure with SFPD, I have served as an

12 officer at three District Stations—Park, Mission and Ingleside; have worked in various investigative

13 bureaus including Sex Crimes, Burglary, Special Investigations, and Internal Affairs; and was

14 promoted several times, including serving as Captain in the Risk Management Office. I have spent my

15 career interviewing victims and witnesses of crime and implementing community policing strategies.

16

4. I am familiar with San Francisco’s Sanctuary City laws—San Francisco Administrative

17 Code Sections 12H and 121—and SFPD’s policies stemming from those laws. Those laws limit

18 sharing personal information in order to “foster respect and trust between law enforcement and

19 residents.” S.F. Admin. Code Section 121.1.

20

5. I am also familiar with Executive Order 13768, dated January 25, 2017, and titled

21 “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”).

22

6. Fostering trust and confidence between law enforcement and the community is vitally

23 important to SFPD. Without it, residents do not feel comfortable reporting crimes, serving as

24 witnesses, or assisting in investigations, thus harming San Francisco as a whole and making it

25 impossible for SFPD to effectively protect and serve its residents.

26

7.

SFPD has dedicated significant time and resources to building bridges into

27 communities in San Francisco and encouraging a mutual respect between law enforcement and

28 members of the community. For years, San Francisco has been using various “community policing”

Walsh Deci. ISO CCSF’s Motion for P1;

1

Case # 17-00485

Case 3:17-cv-00485-WHO Document 25 Filed 03/08/17 Page 3 of 3

1 strategies, aimed at “creat[ingJ safer communities, address[ingJ the root causes of violence, and 2 preserv[ingl healthy and vibrant neighborhoods in San Francisco.” S.F. Admin. Code Section 2A.$3. 3 These ties have been integral to reducing, preventing, and responding to crime—aiding victims and 4 witnesses, improving public safety, and making people feel safe contacting law enforcement. They 5 make San Francisco as a city, safer.

6

8. Yet despite SFPD’s community policing strategies and the relationships that have been

7 building for decades, the Executive Order has eroded some of the community’s trust in SFPD. San

8 Franciscans are scared. SFPD is noticing a reluctance to talk to law enforcement and fear and

9 confusion surrounding SFPD’s relationship with the United States Immigration and Customs

10 Enforcement (“ICE”).

11

9. In addition, instances of actual and suspected ICE activity in San Francisco, combined

12 with statements from the Trump administration suggesting that local governments must cooperate with

13 ICE or face possible enforcement, and the administration’s references to San Francisco as a Sanctuary

14 City, compound the confusion and fear.

15

10. San Francisco’s Sanctuary City laws have helped people feel a level of comfort

16 reaching out to police and other law enforcement. The largest group benefitted by the Sanctuary City

17 laws are victims of crime, who trust that they can report a crime without fear that their involvement

18 will lead to their removal.

19

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

20 was executed on March 7, 2017 at San Francisco, California.

24 V
25 26 27
V
28
Walsh Decl. ISO CCSF’s Motion for P1; Case# 17-00485

COMMANDER PETER WALSH
V
2

 
 Case 3:17-cv-00485-WHO Document 26 Filed 03/08/17 Page 1 of 4

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERE, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, StateBar#241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar#251404

SARA J. EISENBERG, State Bar#269303

7 MATIHEW S. LEE, StateBar#295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18 Plaintiff,

DECLARATION OF TOMA.S ARAG6N, MD, DrPH IN SUPPORT OF CITY AND COUNTY

19 vs.

OF SAN FRANCISCO'S MOTION FOR PRELIMINARY INJUNCTION

20 DONALD J. TRUMP, President of the United Date:

April 12, 2017

21 States, UNITED STATES OF AMERICA,

Time:

JOHN F. KELLY, Secretary of United States Judge:

2:00p.m. Honorable William H. Orrick

22 Department of Homeland Security,

Dept:

JEFFERSON B. SESSIONS, Attorney General

Courtroom2

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28
Aragon Deel. ISO CCSF's Motion for PI; Case # 17-00485

Case 3:17-cv-00485-WHO Document 26 Filed 03/08/17 Page 2 of 4

l I, Tomas Arag6n, declare as follows:

2

l. I am a resident of the State of California. I have personal knowledge of the facts set

3 forth in this declaration and, if called as a witness, could and would testify competently to the matters

4 set forth below.

5

2. I am the Health Officer of the City and County of San Francisco ("San Francisco") and

6 the Director of the Population Health Division ("PHD") of San Francisco's Department of Public

7 Health ("SFDPH"). I have held both positions since 2010.

8

3. As the Health Officer, I exercise leadership and legal authority to protect and promote

9 health throughout San Francisco. In California, each county is required to appoint a county Health

10 Officer. Health Officers are charged with the duty to enforce and observe all orders, ordinances, and

11 · statutes related to public health. In the event of an emergency, Health Officers may take preventative

12 measures as may be necessary to protect and preserve the public health from any public health hazard.

13 Health Officers are also authorized to control contagious, infectious, and communicable diseases and

14 take preventative measures as may be necessary to prevent and control the spread of disease.

15

4. As the Director of PHD, I direct public health services. I am responsible for the vision,

16 mission, strategy, leadership and administration of PHD, including the provision of core public health

17 functions and essential public health services. In San Francisco, core public health functions include

18 environmental health, communicable disease control, maternal, child, adolescent, and family health

19 care, immunization, emergency medical services, public information and promotion of community

20 health. Essential public health services include (1) conducting and disseminating assessments on

21 population health status; (2) investigating health problems and environmental health hazards in the

22 community; (3) informing and educating people about public health issues and functions; (4) engaging

23 the community to identify and address health problems; (5) developing public health policies and

24 plans; (6) enforcing public health laws that protect health and ensure safety; (7) promoting strategies to

25 improve access to health care services; (8) ensuring a competent workforce and professional growth;

26 (9) ensuring continuous quality and performance improvement; and (10) contributing to and applying

27 the evidence base of public health.

28

Aragon Deel. ISO CCSF's Motion for PI;

l

Case # 17-00485

Case 3:17-cv-00485-WHO Document 26 Filed 03/08/17 Page 3 of 4

1

5. Prior to becoming the Health Officer and Director of PHD, I held various positions

2 within SFDPH from 1996-2010 including Director of Chronic Disease Epidemiology, Director of

3 Community Health Epidemiology and Disease Control, as well as Physician Provider at the

4 Tom Waddell Health Center.

5

6. I am f~ar with San Francisco's Sanctuary City laws-San Francisco Administrative

6 Code Sections 12H and 121-and SFDPH's policies stemming from those laws.

7

7. SFDPH serves tens of thousands of patients each year through Zuckerberg

8 San Francisco General Hospital Medical Center, Laguna Honda Hospital and Rehabilitation Center,

9 and over 15 primary care health centers ("SF Health Network"), priding itself on making healthcare

10 comprehensive and accessible. In fiscal year 2015-2016, there were more than 290,000 primary care

11 visits to the SF Health Network, approximately 160,000 specialty care visits, and more than 75,000

12 emergency encounters.

13

8. SFDPH's mission is to protect and promote the health of all San Franciscans by

14 assessing and researching the health of the community; developing and enforcing healthy policy;

15 preventing disease and injury; educating the public and training health care providers; providing

16 quality, comprehensive, culturally-proficient health services; and ensuring equal access to all.

17

9. In order for SFDPH to fulfill this mission and protect the health of all San Franciscans,

18 it is critical that SFDPH build and foster trust, eliminate barriers to treatment, and maintain the

19 confidentiality of patient information. Residents must feel comfortable accessing medical and mental

20 health care: seeking treatment when they are ill, reporting symptoms of communicable and infectious

21 diseases, and getting preventative care to maintain health.

22

10. SFDPH depends on patients to report symptoms and conditions so the Department can

23 act decisively. Whether it is to conduct a contact investigation to contain the spread of a

24 communicable disease, or implement a public information campaign to spread awareness of a

25 particular condition, patient communication and engagement is key to protecting the health of

26 San Francisco as a whole.

27

11. San Francisco's Sanctuary City Laws and related SFDPH policies are one way SFDPH

28 is able to build trust with the community. Prohibiting employees from sharing personal information

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Case 3:17-cv-00485-WHO Document 26 Filed 03/08/17 Page 4 of 4

1 with members of the public, in addition to state and federal laws that protect patient information, give

2 patients comfort that their information is confidential and that there will be no consequences to their

3 seeking treatment.

4

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

5 was executed on March 7, 2017 at San Francisco, California.

6

7

8 TOMAS ARAG6N, MD, DrPH
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
26

27

28

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 Case 3:17-cv-00485-WHO Document 27 Filed 03/08/17 Page 1 of 3

1 DENNIS J. HERRERA, StateBar#139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERE, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, StateBar#241755

TARA M. STEELEY, StateBar#231775

6 MOLLIE M. LEE, State Bar#251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEWS. LEE, StateBar#295247

NEHA GUPTA, StateBar#308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

DECLARATION OF COLLEEN CHAWLA IN

Plaintiff,

SUPPORT OF CITY AND COUNTY OF SAN

19

FRANCISCO'S MOTION FOR

VS.

PRELIMINARY INJUNCTION

20

DONALD J. TRUMP, President of the United Date:

April 12,2017

21 States, UNITED STATES OF AMERICA,

Time:

JOHN F. KELLY, Secretary of United States Judge:

2:00p.m. Honorable William H. Orrick

22 Department of Homeland Securi~y.

Dept:

Courtroom2

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28
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Case 3:17-cv-00485-WHO Document 27 Filed 03/08/17 Page 2 of 3

1 I, Colleen Chawla, declare as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts set

3 forth in this declaration and, if called as a witness, could and would testify competently to the matters

4 set forth below.

5

2. I am the Deputy Director of Health and Director of Public Policy and Planning for the

6 San Francisco Department of Public Health ("SFDPH"). SFDPH's Office of Policy and Planning

7 monitors, researches, and analyzes public health data, information, and policy; produces public health

8 reports and policy briefs; advocates on behalf of consumers and1heir health needs; identifies emerging

9 needs and issues and develops stra.tegic plans; recommends and implements improvements to public

10 policy actions through legislation, policies, plans and programs; and staffs, coordinates, and/or leads

11 public health projects, partnerships, and initiatives.

12

3. In my current position I am responsible for (1) coordinating all government relations

13 for SFDPH including interacting with the San Francisco Health Commission (a governing and policy

14 making body of SFDPH), the San Francisco Board of Supervisors, and state and federal governmental

15 agencies; (2) working on citywide health planning and cross-divisional work; and (3) the creation and

16 dissemination of SFDPH policies. I have held these positions for the last 7 years. Prior to becoming

17 Deputy Director, I worked as a governmental relations executive for two private companies, and

18 served as the Assistant Director of Policy and Planning for SFDPH.

19

4. I am familiar with San Francisco's Sanctuary City laws-San Francisco Administrative

20 Code Sections 12H and 121-as well as SFDPH's policies stemming from these laws. SFDPH uses

21 those laws and policies as tools to encourage San Francisco's residents to feel safe and comfortable

22 accessing medical and mental health treatment. SFDPH's vision is to promote and protect the health

23 and well-being of all San Franciscans. In order to do that thoroughly and effectively, residents must

24 access health services. SFDPH expends significant resources engaging with the community to build a

25 relationship of trust with patients and family members, using all lawful tools to protect our clients'

26 confidential personal information.

27

5. Yet, Executive Order 13768, dated January 25, 2017, and titled "Enhancing Public

28 Safety in the Interior of the United States" (the "Executive Order") threatens that trust and safety.

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Case 3:17-cv-00485-WHO Document 27 Filed 03/08/17 Page 3 of 3

1

6. Since the issuance of the Executive Order, members of the public as well as SFDPH

2 employees have expressed fear and anxiety; fear that if SFDPH is forced to give personal information

3 to the United States Immigration and Customs Enforcement ("ICE") that it will erode the trust that

4 SFDPH has taken such care to build, discourage individuals from accessing health care, and further

5 destabilize communities.

6

7. Since the Executive Order issued, three SFDPH clinics located in the Mission have

7 reported a drop in patient visits, indicating that patients were frightened and scared to access health

8 services. In a Town Hall meeting on November 22, 2016, SFDPH employees expressed not only fear

9 for their clients and patients, but for themselves if San Francisco is compelled to abandon its Sanctuary

10 City laws.

11

8. In response to this fear and uncertainty, SFDPH has expended significant time and

12 resources to reassure San Franciscans of SFDPH's commitment to confidentiality and to eliminating

13 barriers to health care.

14

9. For example, since issuance of the Executive Order, SFDPH has put out a presentation

15 titled, "Post-Election Sanctuary City" a public information campaign designed to explain how

16 San Francisco's Sanctuary City laws and SFDPH's policies work together, and what San Francisco is

17 doing to safeguard personal information.

18

10. SFDPH's mission is to protect and promote the health of all San Franciscans but it can

19 only do so if community members feel like they can trust the Department enough to access needed and

20 preventative health services.

21

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

22 was executed on March 7, 2017 at San Francisco, California.

23

24

25 COLLEEN CHAWLA
26

27

28

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Case 3:17-cv-00485-WHO Document 28 Filed 03/08/17 Page 2 of 3

1 I, Sara J. Eisenberg, declare as follows:

2

1. I am a Deputy City Attorney in the Office of the City Attorney for the City and County

3 of San Francisco ("San Francisco"). I am assigned to the above-captioned matter. I have personal

4 knowledge of the contents of this declaration, except where indicated otherwise, and I could and

5 would testify competently thereto if called upon to do so.

6

2. Attached hereto as Exhibit A is a true and correct copy of Chapter 12H of the

7 San Francisco Administrative Code.

8

3. Attached hereto as Exhibit B is a true and correct copy of Chapter 121 of the

9 San Francisco Administrative Code.

10

4. Attached hereto as Exhibit C is a true and correct copy of Executive Order 13768,

11 entitled "Enhancing Public Safety in the Interior of the United States," issued by President Trump on

12 January 25, 2017.

13

5. Attached hereto as Exhibit D is a true and correct copy of a written remarks delivered

14 by then-candidate Donald Trump in Phoenix, Arizona on August 31, 2016, which is available on the

15 Trump campaign website at https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-

16 on-immigration.

17

6. On February 5, 2017, shortly before the Super Bowl, President Trump appeared on

18 national television in an interview with Fox News personality Bill O'Reilly (the "O'Reilly

19 Interview"). A transcript of that interview is available at Fed. News Serv. Tr., President Donald Trump

20 is Interviewed on Fox, 2017 WLNR 3753383, at 4 (Feb. 5, 2017), a true and correct copy of which is

21 attached hereto as Exhibit E.

22

7. Attached hereto as Exhibit F is a true and correct copy of a Whitehouse issue statement

23 entitled "Standing Up For Our Law Enforcement Community," available on the Whitehouse website at

24 https://www.whitehouse.gov/law-enforcement-community.

25

8. Attached hereto as Exhibit G is a true and correct copy of the "Order on Petition for

26 Writ of Habeas Corpus," issued on March 3, 2017, by Judge Milton Hirsch of the Eleventh Judicial

27 Circuit in and for Miami-Dade, Florida in LaCroix v. Junior, Case No. F17-376.

28

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Case 3:17-cv-00485-WHO Document 28-1 Filed 03/08/17 Page 1 of 3
EXHIBIT A

CHAPTER 12H: IMMIGRATION STATUS

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San Francisco Administrative Code

CHAPTER 12H: IMMIGRATION STATUS

Page 1 of 2

Sec. 12H.1. Sec. 12H.2. Sec. 12H.3. Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

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Page 2 of 2

(Added by Ord.C37a5s-8e9, 3A:p1p.71-0c/2v4-/0890; 4am8e5n-dWed HbyOOrd.D22o8c-0u9,mFielenNto2. 089-11032,FAiplep.d100-238/-02080/91; 7Ord.P96a-g16e, F3ileoNf o3. 160022, App.
6/17/2016, Eff. 7/17/2016)

SEC. 12H.2-1. [REPEALED.]

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.

The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)

SEC. 12H.4. ENFORCEMENT.

The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

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EXHIBIT B

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

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San Francisco Administrative Code

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

Page 1 of 7

Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.

The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.

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Given that civCilaimsem3ig:1ra7t-icovn-d0e0t4ai8n5e-rWs aHreOissuDeodcbuymiemnmt i2g8ra-2tionFoilfefidce0r3s/w08it/h1o7ut jPudaigceial3oovfe8rsight, and the regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance, there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE "Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *1012 (N.D. Ill. filed May 5, 2014).)

On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require state or local law enforcement officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.

According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.

The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.

In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.

First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions

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CHAPTER 12I: CIVIL IMMIGRATION DETAINERS
about local law Cenafsoerc3em:1e7n-tc'sv-l0ia0b4il8it5y-fWorHcOonstDitouctiuonmael nvtio2la8t-i2onsFifileadny0p3e/r0s8o/n17is oPveargdeeta4inoefd8when immigration agents are unable to be present at the time of the person's release from local custody.

Page 3 of 7

Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.

The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.

The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.

In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.2. DEFINITIONS.

"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed.
(b) The individual has been acquitted of all criminal charges filed against him or her.
(c) The individual has served all the time required for his or her sentence.
(d) The individual has posted a bond, or has been released on his or her own recognizance.
(e) The individual has been referred to pre-trial diversion services.

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CHAPTER 12I: CIVIL IMMIGRATION DETAINERS (f) The indivCidausael i3s :o1t7h-ecrwv-i0se04el8ig5i-bWleHfOor reDleoacsuemunednetr2s8ta-t2e orFliolecdal0l3aw/0.8/17 Page 5 of 8

Page 4 of 7

"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.

"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.

"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.

"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.

"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.

"Personal information" means any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information.

"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).

"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.

(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and

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(2) A magiCstarastee h3a:1s7d-ectevr-m00in4e8d5t-hWatHthOereDisopcruombaebnlet 2c8au-2se tFoibleedlie0v3e/0th8e/1in7divPidaugael i6s oguf i8lty of a Violent Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.

(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.

(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:

(1) The individual either:

(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or

(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or

(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and

(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a) (3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

(e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.

(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.4. PURPOSE OF THIS CHAPTER.
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The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary notification of release of individuals, transmission of personal information, and civil immigration documents based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.5. SEMIANNUAL REPORT.

By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.6. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
CODIFICATION NOTE
1. So in Ord. 204-13.
SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

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In enacting anCdaimsepl3e:m1e7n-ctivn-g0t0h4is8C5-hWapHteOr 12DI othceuCmietynits2a8s-s2umFinigleadn0u3n/d0e8r/t1ak7ingPoangley 8toopfro8mote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.8.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.10.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.11.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

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EXHIBIT C

Case 3:17-cv-00485-WHO Document 28-3 Filed 03/08/17 Page 2 of 6
Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
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Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as ‘‘Secure Communities’’ referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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8802

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Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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8803

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017–02102 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 25, 2017.

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EXHIBIT D

Donald J. Trump: Address On Immigration | Donald J Trump for President Case 3:17-cv-00485-WHO Document 28-4 Filed 03/08IN/S1T7AGRAPMage F2ACoEfBO1O0K

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- AUGUST 31, 2016 -
DONALD J. TRUMP: ADDRESS ON IMMIGRATION
Thank you, Phoenix. I am so glad to be back in Arizona, a state that has a very special place in my heart.
I love the people of Arizona and, together, we are going to win the White House in November.
Tonight is not going to be a normal rally speech.
Instead, I am going to deliver a detailed policy address on one of the greatest challenges facing our country today: immigration.
I have just landed having returned from a very important and special meeting with the President of Mexico – a man I like and respect very much, and a man who truly loves his country. Just like I am a man who loves the United States.
We agreed on the importance of ending the illegal flow of drugs, cash, guns and people across our border, and to put the cartels out of business.
We also discussed the great contributions of Mexican-American citizens to our two countries, my love for the people of Mexico, and the close friendship between our two nations.
It was a thoughtful and substantive conversation. This is the first of what I expect will be many conversations in a Trump Administration about creating a new relationship between our two countries.
But to fix our immigration system, we must change our leadership in Washington. There is no other way.
The truth is, our immigration system is worse than anyone realizes. But the facts aren’t known because the media won’t report on them, the politicians won’t talk about them, and the special interests spend a lot of money trying to cover them up.
Today you will get the truth.
The fundamental problem with the immigration system in our country is that it serves the needs of wealthy donors, political activists and powerful politicians. Let me tell you who it doesn’t serve: it doesn’t serve you, the American people.
When politicians talk about immigration reform, they usually mean the following: amnesty, open borders, and lower wages.
Immigration reform should mean something else entirely: it should mean improvements to our laws and policies to make life better for American citizens.
But if we are going to make our immigration system work, then we have to be prepared to talk honestly and without fear about these important and sensitive issues.

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3/5/2017

Donald J. Trump: Address On Immigration | Donald J Trump for President For instance,Cwae hsaeve3to:1lis7te-nctvo-t0he0c4o8nc5er-nWs thHaOt workDinogcpeuompleehnatve2o8ve-r4the Filed 03/08M/A17RCHP2a0g1e5 3 of 10
record pace of immigration and its impact on their jobs, wages, housing, schools, tax bills, and living conditions. These are valid concerns, expressed by decent and patriotic citizens from all backgrounds.

Page 2 of 9

We also have to be honest about the fact that not everyone who seeks to join our country will be able to successfully assimilate. It is our right as a sovereign nation to choose immigrants that we think are the likeliest to thrive and flourish here.
Then there is the issue of security. Countless innocent American lives have been stolen because our politicians have failed in their duty to secure our borders and enforce our laws.

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I have met with many of the parents who lost their children to Sanctuary Cities and open borders. They will be joining me on the stage later today.

Countless Americans who have died in recent years would be alive today if not for the open border policies of this Administration. This includes incredible Americans like 21year-old Sarah Root. The man who killed her arrived at the border, entered federal custody, and then was released into a U.S. community under the policies of this White House. He was released again after the crime, and is now at large.

Sarah had graduated from college with a 4.0, top of her class, the day before.

Also among the victims of the Obama-Clinton open borders policies was Grant Ronnebeck, a 21 year-old convenience store clerk in Mesa, Arizona. He was murdered by an illegal immigrant gang member previously convicted of burglary who had also been released from Federal Custody.

Another victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant deported five previous times.

Then there is the case of 90 year-old Earl Olander, who was brutally beaten and left to bleed to death in his home. The perpetrators were illegal immigrants with criminal records who did not meet the Obama Administration’s priorities for removal.

In California, a 64 year-old Air Force Veteran, Marilyn Pharis, was sexually assaulted and beaten to death with a hammer. Her killer had been arrested on multiple occasions, but was never deported.

A 2011 report from the Government Accountability Office found that illegal immigrants and other non-citizens in our prisons and jails together had around 25,000 homicide arrests to their names.

On top of that, illegal immigration costs our country more than $113 billion dollars a year. For the money we are going to spend on illegal immigration over the next ten years, we could provide one million at-risk students with a school voucher.

While there are many illegal immigrants in our country who are good people, this doesn’t change the fact that most illegal immigrants are lower-skilled workers with less education who compete directly against vulnerable American workers, and that these illegal workers draw much more out from the system than they will ever pay in.

But these facts are never reported.

Instead, the media and my opponent discuss one thing, and only this one thing: the needs of people living here illegally.

The truth is, the central issue is not the needs of the 11 million illegal immigrants – or however many there may be.

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3/5/2017

Donald J. Trump: Address On Immigration | Donald J Trump for President That has nevCerabeseen t3he:1ce7n-tcravl i-s0su0e.4It8w5ill-nWevHer Obe theDcoencturaml isseune.t 28-4 Filed 03/08/17 Page 4 of 10
Anyone who tells you that the core issue is the needs of those living here illegally has simply spent too much time in Washington.
Only out of touch media elites think the biggest problem facing American society today is that there are 11 million illegal immigrants who don’t have legal status.
To all the politicians, donors and special interests, hear these words from me today: there is only one core issue in the immigration debate and it is this: the well-being of the American people. Nothing even comes a close second.
Hillary Clinton, for instance, talks constantly about her fears that families will be separated. But she’s not talking about the American families who have been permanently separated from their loved ones because of a preventable death. No, she’s only talking about families who came here in violation of the law.
We will treat everyone living or residing in our country with dignity. We will be fair, just and compassionate to all. But our greatest compassion must be for American citizens.
President Obama and Hillary Clinton have engaged in gross dereliction of duty by surrendering the safety of the American people to open borders. President Obama and Hillary Clinton support Sanctuary Cities, they support catch-and-release on the border, they support visa overstays, they support the release of dangerous criminals from detention – and they support unconstitutional executive amnesty.
Hillary Clinton has pledged amnesty in her first 100 days, and her plan will provide Obamacare, Social Security and Medicare for illegal immigrants – breaking the federal budget. On top of that, she promises uncontrolled low-skilled immigration that continues to reduce jobs and wages for American workers, especially AfricanAmerican and Hispanic workers. This includes her plan to bring in 620,000 new refugees in a four-year term.
Now that you’ve heard about Hillary Clinton’s plan – about which she has not answered a single substantive question – let me tell you about my plan.
While Hillary Clinton meets only with donors and lobbyists, my plan was crafted with the input from federal immigration officers, along with top immigration experts who represent workers, not corporations. I also worked with lawmakers who’ve led on this issue on behalf of American citizens for many years, and most importantly, I’ve met with the people directly impacted by these policies.
Number One: We will build a wall along the Southern Border.
On day one, we will begin working on an impenetrable physical wall on the southern border. We will use the best technology, including above-and below-ground sensors, towers, aerial surveillance and manpower to supplement the wall, find and dislocate tunnels, and keep out the criminal cartels, and Mexico will pay for the wall.
Number Two: End Catch-And-Release
Under my Administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
Number Three: Zero tolerance for criminal aliens.
According to federal data, there are at least 2 million criminal aliens now inside the country. We will begin moving them out day one, in joint operations with local, state and federal law enforcement.

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immigrants who have fled or evaded justice. But their days on the run will soon be over. They go out, and they go out fast.

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Moving forward, we will issue detainers for all illegal immigrants who are arrested for any crime whatsoever, and they will be placed into immediate removal proceedings. We will terminate the Obama Administration’s deadly non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.

Since 2013 alone, the Obama Administration has allowed 300,000 criminal aliens to return back into U.S. communities – these are individuals encountered or identified by ICE but who were not detained or processed for deportation.

My plan also includes cooperating closely with local jurisdictions to remove criminal aliens.

We will restore the highly successful Secure Communities program. We will expand and revitalize the popular 287(g) partnerships, which will help to identify hundreds of thousands of deportable aliens in local jails. Both of these programs have been recklessly gutted by this Administration. This is yet one more area where we are headed in a totally opposite direction.

On my first day in office, I am also going to ask Congress to pass “Kate’s Law” – named for Kate Steinle – to ensure that criminal aliens convicted of illegal reentry face receive strong mandatory minimum sentences.

Another reform I am proposing is the passage of legislation named for Detective Michael Davis and Deputy Sheriff Danny Oliver, two law enforcement officers recently killed by a previously-deported illegal immigrant. The Davis-Oliver bill will enhance cooperation with state and local authorities to ensure that criminal immigrants and terrorists are swiftly identified and removed.

We are going to triple the number of ICE deportation officers. Within ICE, I am going to create a new special Deportation Task Force, focused on identifying and removing quickly the most dangerous criminal illegal immigrants in America who have evaded justice.

The local police know who every one of these criminals are. There’s no great mystery to it, they’ve put up with it for years. And now, finally, we will turn the tables and law enforcement will be allowed to clear up this dangerous and threatening mess.

We’re also going to hire 5,000 more Border Patrol agents, and put more of them on the border, instead of behind desks. We will expand the number of Border Patrol Stations.

I’ve had a chance to spend time with these incredible law enforcement officers, and I want to take a moment to thank them. The endorsement I’ve received from the Border Patrol officers means more to me than I can say.

Number Four: Block Funding For Sanctuary Cities

We will end the Sanctuary Cities that have resulted in so many needless deaths. Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars, and we will work with Congress to pass legislation to protect those jurisdictions that do assist federal authorities.

Number Five: Cancel Unconstitutional Executive Orders & Enforce All Immigration Laws

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which he defied federal law and the constitution to give amnesty to approximately 5 million illegal immigrants.

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Hillary Clinton has pledged to keep both of these illegal amnesty programs – including the 2014 amnesty which has been blocked by the Supreme Court. Clinton has also pledged to add a third executive amnesty.

Clinton’s plan would trigger a Constitutional Crisis unlike almost anything we have ever seen before. In effect, she would be abolishing the lawmaking powers of Congress in order to write her own laws from the Oval Office.

In a Trump Administration, all immigration laws will be enforced. As with any law enforcement activity, we will set priorities. But, unlike this Administration, no one will be immune or exempt from enforcement – and ICE and Border Patrol officers will be allowed to do their jobs. Anyone who has entered the United States illegally is subject to deportation – that is what it means to have laws and to have a country.

Our enforcement priorities will include removing criminals, gang members, security threats, visa overstays, public charges – that is, those relying on public welfare or straining the safety net, along with millions of recent illegal arrivals and overstays who’ve come here under the current Administration.

Number Six: We Are Going To Suspend The Issuance Of Visas To Any Place Where Adequate Screening Cannot Occur

According to data provided to the Senate Subcommittee on Immigration and the National Interest, between 9/11 and the end of 2014, at least 380 foreign-born individuals were convicted in terror cases inside the United States. The number is likely higher, but the Administration refuses to provide this information to Congress.

As soon as I enter office, I am going to ask the Department of State, Homeland Security and the Department of Justice to begin a comprehensive review of these cases in order to develop a list of regions and countries from which immigration must be suspended until proven and effective vetting mechanisms can be put into place.

Countries from which immigration will be suspended would include places like Syria and Libya.

For the price of resettling 1 refugee in the United States, 12 could be resettled in a safe zone in their home region.

Another reform involves new screening tests for all applicants that include an ideological certification to make sure that those we are admitting to our country share our values and love our people.

For instance, in the last five years, we’ve admitted nearly 100,000 immigrants from Iraq and Afghanistan – in these two countries, according to Pew research, a majority of residents say that the barbaric practice of honor killings against women are often or sometimes justified.

Applicants will be asked for their views about honor killings, about respect for women and gays and minorities, attitudes on Radical Islam, and many other topics as part of the vetting procedure.

Number Seven: We will ensure that other countries take their people back when we order them deported

There are at least 23 countries that refuse to take their people back after they have been ordered to leave the United States, including large numbers of violent criminals. Due to a Supreme Court decision, if these violent offenders cannot be sent home, our
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terrible consequences, such as Casey Chadwick’s tragic death in Connecticut just last year. Yet, despite the existence of a law that commands the Secretary of State to stop issuing visas to these countries, Secretary Hillary Clinton ignored this law and refused to use this powerful tool to bring nations into compliance.

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The result of her misconduct was the release of thousands of dangerous criminal aliens who should have been sent home.

According to a report from the Boston Globe, from the year 2008 through 2014, nearly 13,000 criminal aliens were released back into U.S. communities because their home countries would not take them back. Many of these 13,000 releases occurred on Hillary Clinton’s watch – she had the power and the duty to stop it cold and she didn’t do it.

Those released include individuals convicted of killings, sexual assault and some of the most heinous crimes imaginable, who went on to reoffend at a very high rate.

Number Eight: We will finally complete the biometric entry-exit visa tracking system.

For years, Congress has required a biometric entry-exit visa tracking system, but it has never been completed.

In my Administration, we will ensure that this system is in place at all land, air, and sea ports. Approximately half of new illegal immigrants came on temporary visas and then never left. Beyond violating our laws, visa overstays pose a substantial threat to national security. The 9/11 Commission said that this tracking system should be a high priority and “would have assisted law enforcement and intelligence officials in August and September 2001 in conducting a search for two of the 9/11 hijackers that were in the U.S. on expired visas.”

Last year alone, nearly a half a million individuals overstayed their temporary visas. Removing visa overstays will be a top priority of my Administration. If people around the world believe they can just come on a temporary visa and never leave – the Obama-Clinton policy – then we have a completely open border. We must send the message that visa expiration dates will be strongly enforced.

Number Nine: We will turn off the jobs and benefits magnet.

We will ensure that E-Verify is used to the fullest extent possible under existing law, and will work with Congress to strengthen and expand its use across the country.

Immigration law doesn’t exist just for the purpose of keeping out criminals. It exists to protect all aspects of American life – the worksite, the welfare office, the education system and much else. That is why immigration limits are established in the first place. If we only enforce the laws against crime, then we have an open border to the entire world.

I will enforce all of our immigration laws.

The same goes for government benefits. The Center for Immigration Studies estimates that 62 percent of households headed by illegal immigrants used some form of cash or non-cash welfare programs, like food stamps or housing assistance. This directly violates the federal public charge law designed to protect the U.S. treasury.

Those who abuse our welfare system will be priorities for removal.

Number 10: We will reform legal immigration to serve the best interests of America and its workers
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Many of these arrivals have greatly enriched our country. But we now have an obligation to them, and to their children, to control future immigration – as we have following previous immigration waves – to ensure assimilation, integration and upward mobility.
Within just a few years immigration as a share of national population is set to break all historical records.
The time has come for a new immigration commission to develop a new set of reforms to our legal immigration system in order to achieve the following goals:
• To keep immigration levels, measured by population share, within historical norms • To select immigrants based on their likelihood of success in U.S. society, and their
ability to be financially self-sufficient. We need a system that serves our needs – remember, it’s America First. • To choose immigrants based on merit, skill and proficiency • And to establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.
We want people to come into our country, but they have to come in legally and properly-vetted, and in a manner that serves the national interest.
We’ve been living under outdated immigration rules from decades ago. To avoid this happening in the future, I believe we should sunset our visa laws so that Congress is forced to periodically revise and revisit them. We wouldn’t put our entire federal budget on autopilot for decades, so why should we do the same for immigration?
Let’s talk about the big picture
These ten steps, if rigorously followed and enforced, will accomplish more in a matter of months than our politicians have accomplished on this issue in the last fifty years.
Because I am not a politician, because I am not beholden to any special interest, I will get this done for you and your family.
We will accomplish all of the steps outlined above, and when we do, peace and law and justice and prosperity will prevail. Crime will go down, border crossings will plummet, gangs will disappear, and welfare use will decrease. We will have a peace dividend to spend on rebuilding America, beginning with our inner cities.
For those here today illegally who are seeking legal status, they will have one route and only one route: to return home and apply for re-entry under the rules of the new legal immigration system that I have outlined above. Those who have left to seek entry under this new system will not be awarded surplus visas, but will have to enter under the immigration caps or limits that will be established.
We will break the cycle of amnesty and illegal immigration. There will be no amnesty.
Our message to the world will be this: you cannot obtain legal status, or become a citizen of the United States, by illegally entering our country.
This declaration alone will help stop the crisis of illegal crossings and illegal overstays.
People will know that you can’t just smuggle in, hunker down, and wait to be legalized. Those days are over.
In several years, when we have accomplished all of our enforcement goals – and truly ended illegal immigration for good, including the construction of a great wall, and the establishment of our new lawful immigration system – then and only then will we be in a position to consider the appropriate disposition of those who remain. That discussion can only take place in an atmosphere in which illegal immigration is a
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new circumstances at the time.

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Right now, however, we are in the middle of a jobs crisis, a border crisis, and a terrorism crisis. All energies of the federal government and the legislative process must now be focused on immigration security. That is the only conversation we should be having at this time.

Whether it’s dangerous materials being smuggled across the border, terrorists entering on visas, or Americans losing their jobs to foreign workers, these are the problems we must now focus on fixing – and the media needs to begin demanding to hear Hillary Clinton’s answer on how her policies will affect Americans and their security.

These are matters of life-and-death for our country and its people, and we deserve answers from Hillary Clinton.

What we do know, despite the total lack of media curiosity, is that Hillary Clinton promises a radical amnesty combined with a radical reduction in immigration enforcement. The result will be millions more illegal immigrants, thousands more violent crimes, and total chaos and lawlessness.

This election is our last chance to secure the border, stop illegal immigration, and reform our laws to make your life better.

This is it. We won’t get another opportunity – it will be too late.

So I want to remind everyone what we are fighting for – and who we are fighting for.

So I am going to ask all the Angel Moms to come join me on the stage right now.

[[PAUSE FOR ANGEL MOMS – EACH SAYS THE NAME OF THEIR CHILD INTO THE MICROPHONE]]

Now is the time for these voices to be heard.

Now is the time for the media to begin asking questions on their behalf.

Now is the time for all of us, as one country, Democrat and Republican, liberal and conservative, to band together to deliver justice and safety and security for all Americans.

Let’s fix this problem.

Let’s secure our border.

Let’s stop the drugs and the crime.

Let’s protect our Social Security and Medicare.

And let’s get unemployed Americans off of welfare and back to work in their own country.

Together, we can save American lives, American jobs, and American futures.

Together, we can save America itself.

Join me in this mission to Make America Great Again.

Thank you, and God Bless you all!

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Next Release: Donald J. Trump Remarks in Mexico City, Mexico
Previous Release: SENATOR DAVID PERDUE STATEMENT ON TRUMP’S IMMIGRATION SPEECH

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President Donald Trump is Interviewed on Fox, 2017 WLNR 3753383

2/5/17 Fed. News Serv. Transcripts (Pg. Unavail. Online) 2017 WLNR 3753383
Federal News Service Transcripts Copyright (c) 2017 Federal News Service
February 5, 2017

President Donald Trump is Interviewed on Fox Subject: Politics Time: 16:00:00 Date: 2017-02-05
BILL O’REILLY, FOX NEWS HOST: So another big week for the Trump administration. Judge Gorsuch, that roll-out went very smoothly I think.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Yes it did.
O’REILLY: All right. But the refugee deal, not so much.
TRUMP: I think it was very smooth. You had 109 people out of hundreds of thousands of travelers and all we did was vet those people very, very carefully.
O’REILLY: You wouldn’t do anything differently if you had to do it over again?
(CROSSTALK)
TRUMP: Look…
O’REILLY: I mean, some of your people didn’t really know what the order was?
TRUMP: Well, that’s not what General Kelly said. General Kelly, who’s now Secretary Kelly, he said he totally knew, he was aware of it, and it was very smooth.
O’REILLY: All right.
TRUMP: It was 109 people.
O’REILLY: Let’s talk about Iran. Your assessment; do you think we’re on a collision course, we being the United States, with that country?
TRUMP: I think it was the worst deal I’ve ever seen negotiated. I think it was a deal that should of never been negotiated.
O’REILLY: The nuke deal you’re talking about?
TRUMP: Absolutely. The deal that was made by the Obama administration. I think it’s a shame that we’ve had a deal like that and that we had to sign a deal like that. And there was no reason to do it. And, if you’re going to do it, have a good deal.

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President Donald Trump is Interviewed on Fox, 2017 WLNR 3753383

We gave them $1.7 billion in cash, which is unheard of. And we put the money up and we have really nothing to show for it. O’REILLY: Possible you tear it up? TRUMP: We’ll see what happens. (CROSSTALK) O’REILLY: So it’s possible. TRUMP: I mean, we’re going to see what happens. I can say this, they have total disregard for our country. They are the number one terrorist state. They’re sending money all over the place -- and weapons. And can’t do that. O’REILLY: Sanctions, that’s how you’re going to start with them? TRUMP: Just started . O’REILLY: But you’re moving a carrier right? TRUMP: I never talk about military moves. I always criticized President Obama where they’d have an announcement that they’re going into Mosul or they’re going to some place and they give the name, the date, the time, I don’t believe in that. O’REILLY: So you’re not real bullish on Iran at this point? TRUMP: No, I’m not bullish. I think they have total disrespect for our country. I understand, that deal -- I would of lived with it if they said, OK, we’re all together now. But it was just the opposite. It’s like they’re emboldened where they follow our planes, they circle our ships with their little boats, and they lost respect because they can’t believe anybody could be so stupid as to make a deal like that. O’REILLY: You talked to Putin last week, you had a busy week last week. TRUMP: A pretty busy week, yes, busy week-and-a-half. O’REILLY: Do you respect Putin? TRUMP: I do respect him but… O’REILLY: Do you? Why? TRUMP: Well, I respect a lot of people but that doesn’t mean I’m going to get along with them. He’s a leader of his country. I say it’s better to get along with Russia than not. And if Russia helps us in the fight against ISIS, which is a major fight, and Islamic terrorism all over the world… O’REILLY: Right. TRUMP: Major fight, that’s a good thing. Will I get along with him? I have no idea. O’REILLY: But he’s a killer though. Putin’s a killer. TRUMP: There are a lot of killers. We’ve got a lot of killers. What, you think our country’s so innocent? You think our country’s so innocent? O’REILLY: I don’t know of any government leaders that are killers.

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TRUMP: Well, take a look at what we’ve done too. We’ve made a lot of mistakes. I’ve been against the war in Iraq from the beginning.
O’REILLY: Yes. Mistakes are different than…
TRUMP: A lot of mistakes, OK, but a lot of people were killed. So a lot of killers around, believe me.
O’REILLY: All right. Let’s talk about Mexico. There was a report you talked to President Nieto and you told him -- this was the report, I want to know if it’s true or not, that if his army couldn’t handle the drug cartels that U.S. Army soldiers would, did you say that?
TRUMP: We have to do something about the cartels. I did talk to him about it. I want to help him with it. I think he’s a very good man. We have a very good relationship, as you probably know. He seemed very willing to get help from us because he has got a problem.
O’REILLY: Got a problem.
TRUMP: And it’s a real problem for us. Don’t forget those cartels are operating in our country and they’re poisoning the youth of our country.
O’REILLY: At this point do you consider Mexico a corrupt country? Because this stuff has been going on for decades.
TRUMP: I love the people. I really like this administration. I think he’s a good man. We get along very well. But they have problems controlling aspects of their country, there’s no question about it.
And I would say the drugs and the drug cartels, number one.
O’REILLY: Have you figured out what kind of a tariff you’re going to levy on Mexico to pay for the wall?
TRUMP: Well, right now it’s very unfavorable. Right now we’re losing our jobs to Mexico. You look at the plants, you look at these massive plants.
And I have to tell you I’ve turned it around, already I’ve turned it around, you see that. Ford has been phenomenal. They canceled the plan. They’re building tremendous...
O’REILLY: Yes, you intimidated them. They’re afraid of you.
TRUMP: No, General Motors has got Mary Barra...
O’REILLY: Oh come on, they’re afraid of you. You know these companies.
TRUMP: I don’t know if they’re afraid -- no, no, they want to do what’s right.
O’REILLY: They want to do what’s right?
TRUMP: They’re going to bring jobs back...
O’REILLY: Why didn’t they do what was right in the past? They’re afraid of you.
TRUMP: Because the wrong people spoke to them. But they’re going to do what’s right and they’re bringing jobs back to Michigan and Ohio...
O’REILLY: All right.

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TRUMP: ... and Pennsylvania and all the places that have lost the jobs. So that’s already happening. I think you’re going to see a tremendous job growth in this country.
O’REILLY: Let’s turn domestic policy. I just spent the week in California. As you know, they are now voting on whether they should become a sanctuary state.
So California and the USA are on a collision course. How do you see it?
TRUMP: Well, I think it’s ridiculous. Sanctuary cities, as you know, I’m very much opposed to sanctuary cities. They breed crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of money to California...
O’REILLY: So you’re going to defund...
TRUMP: California in many ways is out of control, as you know. Obviously the voters agree, otherwise they wouldn’t have voted for me.
O’REILLY: So defunding is your weapon of choice...
TRUMP: Well, it’s a weapon, I don’t want to defund the state or a city.
O’REILLY: But you’re willing to do it.
TRUMP: I don’t want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.
O’REILLY: Is there any validity to the criticism of you that you say things you can’t back up factually, and as the president, if you say, for example, that there are 3 million illegal aliens who voted, and then you don’t have the data to back it up, some people are going to say, that’s irresponsible for a president to say that, is there any validity to it?
TRUMP: Well, many people have come out and said I am right, you know that. O’REILLY: I know, but you have got to have data to back that up.
TRUMP: Let me just tell you -- let me just tell you, and it doesn’t have to do with the vote, although the end result. It has to due with the registration. And when you look at the registration and you see dead people that have voted, when you see people that are registered in two states, that have voted in two states, when you see other things, when you see illegals, people that are not citizens and they are on the registration roles.
Look, Bill, we can be babies, but you take a look at the registration, you have illegals, you have dead people, you have this, it’s really a bad situation, it’s really bad. And... O’REILLY: So you think you’re going to be proven correct in that statement?
TRUMP: Well, I think I already have, a lot of people have come out and said that I am correct.
O’REILLY: Yes, but the data has to show that 3 million illegals voted.
TRUMP: Look, forget that, forget all of that, just take a look at the registration and we’re going to do it. And I’m going to set up a commission to be headed by Vice President Mike Pence, and we’re going to look at it very, very carefully.
O’REILLY: Well, that’s good. Let’s get to the bottom of it.
2017, can Americans expect a tax cut?
TRUMP: I think so, yes. And I think that before the end of the year I would like to say yes.

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O’REILLY: OK, can Americans in 2017 expect a new health care plan rolled out by the Trump administration this year?
TRUMP: Yes, in the process and maybe it’ll take till sometime into next year but we’re certainly going to be in the process. Very complicated, Obamacare is a disaster. You have to remember, Obamacare doesn’t work.
So we are putting in a wonderful plan. It’s -- statutorily it takes a while to get. We’re going to be putting it in fairly soon. I think that, yes, I would like to say by the end of the year, at least the rudiments, but we should have something within the year and the following year.
O’REILLY: All right. Last question, you get four hours of sleep or some crazy thing like that. When your head hits the pillow, do you ever say to yourself, I can’t believe I’m here, I cannot believe that I am the president of the United States when I wasn’t a politician, I didn’t start out this way, that wasn’t my life goal, does that ever come into your mind? TRUMP: Well, I must tell you, the other day I walked into the main entrance of the White House and I said to myself, this is sort of amazing, or you walk into Air Force One. It’s like a surreal experience in a certain way, but you have to get over it, because there’s so much work to be done, whether it’s jobs or other nations that truly hate us, you have to get over it.
O’REILLY: Football, how do you see this game?
TRUMP: Well, I like Bob Kraft, I like Coach Belichick, and Tom Brady’s my friend.
O’REILLY: They’re all taking gas because of that, you know they’re...
TRUMP: I know they’re taking a lot of heat.
(CROSSTALK)
O’REILLY: Right.
TRUMP: But you know what, they’re also getting a lot popularity out of it. I think they’re going to do very well. Tom’s a winner. He’s going to win.
O’REILLY: So you’re rooting for the Patriots.
TRUMP: The coach is a great coach. I think the other team is fantastic though. No, I think it’s a fantastic team, turned out to be a good quarterback. But, you know, there’s less pressure on the Patriots because they’ve been there.
You know, once you’ve won, once you’ve done it, and they’ve done it, once you’ve done it there’s a lot less pressure. So we’ll see what happens. But, you know, you have to stick up for your friends, right?
O’REILLY: Sure, now FOX Sports is demanding I ask you to make a prediction.
TRUMP: Well, I hate to make predictions.
O’REILLY: But you have to.
TRUMP: I hate to do it. But I’ll say...
(CROSSTALK)
O’REILLY: ... leave and let you do it.
TRUMP: I’ll say I don’t even know what are the odds; I guess it’s pretty even, right, two great teams.
O’REILLY: Yes, but you’ve got to.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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Case 3:17-cv-00485-WHO Document 28-5 Filed 03/08/17 Page 7 of 8
President Donald Trump is Interviewed on Fox, 2017 WLNR 3753383

TRUMP: Pretty even. So I’ll say the Patriots will win.
O’REILLY: By how many points?
TRUMP: By 8 points.
O’REILLY: All right. So that’s a good presidential prediction and we’ll see.
(CROSSTALK)
TRUMP: ... doing those things, but that’s OK.
O’REILLY: You don’t need data on that?
TRUMP: I need no data.
O’REILLY: OK. Mr. President, thanks very much for taking the time.
TRUMP: Thank you so much.
END
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News Subject: (Emerging Market Countries (1EM65); Government (1GO80); Legislation (1LE97); U.S. Legislation (1US12))

Industry: (Celebrities (1CE65); Entertainment (1EN08); Healthcare (1HE06); Healthcare Regulatory (1HE04); TV (1TV19); TV Programming (1TV26); U.S. National Healthcare Reform (1US09))

Region: (Americas (1AM92); Asia (1AS61); California (1CA98); District of Columbia (1DI60); Gulf States (1GU47); Latin America (1LA15); Mexico (1ME48); Middle East (1MI23); North America (1NO39); U.S. Mid-Atlantic Region (1MI18); U.S. West Region (1WE46); USA (1US73))

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Other Indexing: (Putin) (DONALD TRUMP; Gorsuch; Barack Obama; Vladimir Putin; Mike Pence; Bob Kraft; Nieto; Mary T. Barra; Mary Barra; Kelly; Tom Brady; Belichick)

Keywords: Newsmakers

Word Count: 2271
End of Document

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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President Donald Trump is Interviewed on Fox, 2017 WLNR 3753383

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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EXHIBIT F

Standing Up For Our Law Enforcement Community | whitehouse.gov Case 3:17-cv-00485-WHO Document 28-6 Filed 03/08/17 Page 2 of 3
the WHITE HOUSE PRESIDENT DONALD J. TRUMP
Í

Page 1 of 2

Issues
America First Energy Plan
America First Foreign Policy
Bringing Back Jobs And Growth
Making Our Military Strong Again
Standing Up For Our Law Enforcement Community
Trade Deals That Work For All Americans
Standing Up For Our Law Enforcement Community
One of the fundamental rights of every American is to live in a safe community. A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.
The Trump Administration is committed to reducing violent crime. In 2015, homicides increased by 17% in America’s fifty largest cities. That’s the largest increase in 25 years. In our nation’s capital, killings rose by 50 percent over the past four years There were thousands of shootings in Chicago last year alone.
Our country needs more law enforcement, more community engagement, and more effective policing.
Our job is not to make life more comfortable for the rioter, the looter, or the violent disrupter. Our job is to make life more comfortable for parents who want their kids to be able to walk the streets safely. Or the senior citizen waiting for a bus. Or the young child walking home from school.
Supporting law enforcement means supporting our citizens’ ability to protect themselves. We will uphold Americans’ Second Amendment rights at every level of our judicial system.
https://www.whitehouse.gov/law-enforcement-community

3/5/2017

Standing Up For Our Law Enforcement Community | whitehouse.gov President TrumpCisacsoem3m:1i7tt-ecdv-t0o0b4u8i5ld-WingHaOboDrdoecruwmaellntto2s8t-o6p ilFleilgeadl 0im3/m08ig/1ra7tioPn,atgoes3toopft3he gangs and the violence, and to stop the drugs from pouring into our communities. He is dedicated to enforcing our border laws, ending sanctuary cities, and stemming the tide of lawlessness associated with illegal immigration.
Supporting law enforcement also means deporting illegal aliens with violent criminal records who have remained within our borders.
It is the first duty of government to keep the innocent safe, and President Donald Trump will fight for the safety of every American, and especially those Americans who have not known safe neighborhoods for a very long time.

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HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN USA.gov Privacy Policy Copyright Policy

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Case 3:17-cv-00485-WHO Document 28-7 Filed 03/08/17 Page 1 of 16
EXHIBIT G

Case 3:17-cv-00485-WHO Document 28-7 Filed 03/08/17 Page 2 of 16

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

JAMES LACROIX, Petitioner,

CASE NO. F17-376 F17-1770

v.

DANIEL JUNIOR as director of the Miami-Dade County Department of Corrections,

Respondent. ________________________/

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is charged with no crime and is serving no sentence. Yet he was, at the time

these proceedings were initiated, incarcerated in the Miami-Dade County correctional system

with no prospect of imminent release. Seeking to have his liberty restored immediately, he

brings this petition for writ of habeas corpus. See gen’ly Fla. Const. Art. I § 13; Fla. Stat. Ch.

79.

I. Facts

The present petition is a consequence of an important change in the policy of the Miami-

Dade County Department of Corrections (“the Department”). That change in policy is in turn a

consequence of a recent presidential order.

The Department “operates the eighth largest jail system in the country. There are between

4,300 [and] 4,500 persons incarcerated daily in [its] four detention facilities.” See

http://www.miamidade.gov/corrections/. The cost to Miami-Dade County of incarcerating its

inmate population is staggering. Understandably, the county is not eager to house anyone it is

not obliged to house, and not eager to house anyone any longer than it is obliged to house him. If

Case 3:17-cv-00485-WHO Document 28-7 Filed 03/08/17 Page 3 of 16
an inmate is convicted and given more than a year’s sentence he will be shipped off to state prison, where the state and not the county will bear the burden of maintaining him. If an inmate is acquitted or his case otherwise resolved, he will be released forthwith.
It often happens, however, that Immigrations and Customs Enforcement (“ICE”), the federal agency responsible for the deportation of those whose presence in this country is unlawful, will file a detainer or lodge a request with the Department, seeking to have the Department retain an inmate whom the Department would otherwise release, so that ICE can arrange to take custody of him. See Respondent’s “Response to Emergency Petition for Writ of Habeas Corpus and Motion to Dismiss” (hereinafter “Response”) at 2 (referring to DHS Form I247X, one of the documents commonly employed by ICE to give notice that it wishes someone held by the Department). Such detainers or requests are not evidence that a crime has been committed, or that someone is in this country illegally. They are not evidence of anything. They simply indicate that ICE believes it has a basis to inquire further as to the status of the person sought. See Response at 3.
This practice, however, gives rise to two inequities. First, it obliges the Department to house, oversee, and control prisoners in whom neither the state nor the county has any ongoing interest; and it obliges the Department to do so at county expense, because neither ICE nor any other instrumentality of the federal government makes the county whole for the cost of this housing, overseeing, and controlling. Second, it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify.
In 2013, to address these concerns, the Miami-Dade County Commission determined that
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the Department simply could not continue to hold, for pick-up by ICE at some future date, any person who had neither charges pending against him nor a sentence imposed upon him. This “2013 commission vote ... effectively banned county jails from honoring the [ICE] requests, since Washington consistently refused to pay the full tab for local jail time.” Douglas Hanks, Under Trump Crackdown, 1,000-Plus ‘Sanctuary’ Inmates Could be Detained, Miami Herald (Feb. 6, 2017) p. 3A. “Before the County Commission changed its detention policy ... MiamiDade said it received 2,500 detainer requests in 2012 and spent about $670,000 complying with them.” Id. (It is unclear whether that very considerable figure reflects just the cost of compliance, or includes the more general costs of continued housing, supervision, and the like.)
In January of this year, however, “an executive order [was] signed ... by President Donald Trump that threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement.” Patricia Mazzei, Miami-Dade Mayor Orders Jails to Comply with Trump Crackdown on ‘Sanctuary’ Counties, Miami Herald (Jan. 26, 2017), http://www.miamiherald.com/news/local/community/miami-dade/article128984759.html. In the face of this presidential edict, Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and “ordered county jails to comply with federal immigration detention requests.” Id.1 As
1 See also Patricia Mazzei, S. Fla. Ranks No. 5 in Undocumented Migrants, Miami Herald (Feb. 10, 2017) p. 7A:
President Donald Trump ... sign[ed] an executive order last month to cut federal funding for cities and counties considered “sanctuaries” for the undocumented. To avoid the label, MiamiDade County Mayor Carlos Gimenez quickly agreed to hold inmates in local jails for federal immigration agents even if the feds refuse to reimburse the county for the expense – a ... policy reversal.
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a result Petitioner, and thousands like him, will be held in county facilities until such time – if
any – as ICE comes calling for them.2 Neither the state nor the county makes any claim on
Petitioner. But Miami-Dade correctional facilities and Miami-Dade correctional personnel have
been conscripted to lock him up for and on behalf of the federal government, and to do so at
county expense.
II. Analysis
The presidential order that gave birth to this conflict has sparked the popular use of the
term “sanctuary city” to refer to any community that refuses, as Miami-Dade County did till
January 26 of this year, to permit its corrections officers and its corrections facilities to be press-
ganged into the service of ICE. “Sanctuary city” has a Biblical sound to it,3 and thus lends
Mayor Gimenez’s decision was approved by the County Commission on February 17 of this year. See Patricia Mazzei & Douglas Hanks, Fearing Trump, Commission Drops Miami-Dade’s ‘Sanctuary Protections, Miami Herald (Feb. 17. 2017), http://www.miamiherald.com/news/local/community/miami-dade/article133413384.html.
2 It is difficult to know exactly how long Petitioner, or indeed any detainee, will be held for pick-up by ICE. Anecdotal evidence suggests that two to five days is not uncommon.
3 Actually there are no “sanctuary cities” in the Hebrew Bible. There are arey hamiklat, cities of refuge, of asylum. These cities exist for the narrow purpose of providing a mechanism for the adjudication of claims of involuntary manslaughter. See Joshua 20:1-6:
And the Lord spoke unto Joshua, saying: Speak to the children of Israel, saying: Assign you the cities of refuge, whereof I spoke unto you by the hand of Moses; that the manslayer that killeth any person through error and unawares may flee thither; and they shall be unto you for a refuge from the avenger of blood. And he shall flee unto one of those cities, and shall stand at the entrance of the gate of the city, and declare his cause in the ears of the elders of that city; and they shall take him into the city unto them, and give him a place, that he may dwell among them. And if the avenger of blood pursue after him, then they shall not deliver up the manslayer into his hand; because he smote his neighbor unawares, and hated
4

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rhetorical force to arguments intended to condemn the county’s former policy.4 But Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.
The Constitution protects individual rights and liberties from the encroachment of governmental power by separating that power along both a horizontal axis – the division of executive, legislative, and judicial functions; and a vertical one – the division of federal and state functions. As to the vertical axis, the Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What is sometimes called the “anti-commandeering” principle of the Tenth Amendment is an expression of that reservation of powers.
That principle received its most authoritative exegesis in Printz v. United States, 521 U.S. 898 (1997) (Scalia, J.), in which the Court considered “whether certain interim provisions of the
him not beforetime. And he shall dwell in that city, until he stand before the congregation for judgment, until the death of the high priest that shall be in those days; then may the manslayer return, and come unto his own city, and unto his own house, unto the city from which he fled. See also Deut. 4:41-42. Sanctuary – safety from punishment, prosecution, vengeance – could be had only by clutching the horns of the altar. 1 Kings 1:50-51. But see 1 Kings 2:28-34, in which King Solomon commands Benaiah to assassinate Joab while Joab is clutching the horns of the altar. 4 Those seeking additional rhetorical firepower are directed to William Shakespeare, King Richard III, Act III sc. 1: “God in heaven forbid/We should infringe the holy privilege/Of blessed sanctuary! Not for all this land/Would I be guilty of so deep a sin.”
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Brady Handgun Violence Prevention Act ... commanding state and local law enforcement
officers to conduct background checks on prospective handgun purchasers and to perform certain
related tasks violate[d] the Constitution.” Printz, 521 U.S. at 902. The federal statute in
question “direct[ed] state law enforcement officers to participate ... in the administration of a
federally enacted regulatory scheme.” Id. at 904. Printz, a county sheriff in Montana,
“object[ed] to being pressed into federal service, and contend[ed] that congressional action
compelling state officers to execute federal laws is unconstitutional.” Id. at 905. The Supreme
Court embraced Sheriff Printz’s position in uncompromising language:
We held in New York [v. United States, 505 U.S. 144 (1992)] that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Printz, 521 U.S. at 935.
The case at bar is actually easier than Printz. Printz involved an area of law as to which
the state and federal governments share regulatory responsibility, viz., the traffic in firearms.
What was constitutionally offensive in Printz was not that local sheriffs were called upon to
perform background checks on would-be gun owners – something that local police departments
are often called upon to do as a matter of local law – but that sheriffs were compelled to do so by,
and as agents for, the federal government.
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Here, however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE – Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.
Printz all but acknowledges as much. In his opinion for the Court, Justice Scalia recounts that:
On September 23, 1789 – the day before its proposal of the Bill of Rights, see 1 Annals of Congress 912-913 – the First Congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the new Government’s laws: the holding of federal prisoners in state jails at federal expense. Significantly, the law issued not a command to the States’ executive, but a recommendation to their legislatures. Congress “recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their
7

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gaols, to receive and safe keep therein all prisoners committed under the authority of the United States,” and offered to pay 50 cents per month for each prisoner. Act of Sept. 23, 1789, 1 Stat. 96. Moreover, when Georgia refused to comply with the request, see L. White, The Federalists 402 (1948), Congress’s only reaction was a law authorizing the marshal in any State that failed to comply with the Recommendation of September 23, 1789, to rent a temporary jail until provision for a permanent one could be made, see Resolution of March 3, 1791, 1 Stat. 225. Printz, 521 U.S. at 910. Apparently it was clear to the members of the first Congress that the federal government is without power to compel state authorities to house and maintain federal prisoners – even if the federal government offers to pay a fair price for that housing and maintenance. Petitioner Lacroix was a county prisoner, but at present the county has neither a reason nor a basis in law to keep him its prisoner. A federal agency wants Lacroix to be a federal prisoner, but demands that the county do the imprisoning on the federal government’s behalf. That is a demand that the federal government is constitutionally prohibited from enforcing, and it is a demand with which the local government is constitutionally prohibited from complying. “It might well be deemed an unconstitutional exercise ... to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted [sic] to them by the Constitution.” Prigg v. Pennsylvania, 41 U.S. 539, 541 (1842) (Story, J.). This reservation of powers to the states is not intended merely as a benefit for the states; the intended beneficiaries are, as the language of the Tenth Amendment makes clear, “the people,” whose liberties are best protected when “ambition [is] made to counteract ambition.” Federalist 51 at 349 (James Madison) (Clinton Rossiter ed., 1961). States cannot cede their reserved powers to the federal government – no, not even if they wish to do so. They must retain
8

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and exercise those fundamental governmental powers that enable them to act as a counterweight to the exercise of federal governmental powers. “Neither consent nor submission by the States can enlarge the powers of Congress; none can exist except those which are granted. ... The sovereignty of the State essential to its proper functioning under the Federal Constitution cannot be surrendered.” Ashton v. Cameron County Water Improvement District, 298 U.S. 513, 531 (1936) (citing United States v. Butler, 297 U.S. 1 (1936)).
No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.
The presidential edict at issue here seeks to bring about the conscription of the Department, and employs powerful financial pressure to do so. Mayor “Gimenez defended his order as needed to protect the county’s more than $350 million in annual federal aid – plus billions the mayor wants to expand Metrorail. ‘I think that money is in jeopardy,’ he said.” Douglas Hanks, ACLU: Mayor Was ‘Duped’ on Law for Detentions, Miami Herald (Feb. 7, 2017) p. 3A. The federal government’s spending power is vested, however, in Congress, see U.S. Const. Art. I § 8, clause 1, not in the president or the executive branch. And even Congress cannot use the spending power to bring about otherwise-unconstitutional outcomes. In New York v. United States, 505 U.S. 144 (1992), an important “anti-commandeering” decision that was heavily relied upon by the Supreme Court in Printz, the Court noted that, “under Congress’ spending power, ‘Congress may attach conditions on the receipt of federal funds.’” New York v. United States, 505 U.S. at 167 (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)). But
9

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“[s]uch conditions must ... bear some relationship to the purpose of the federal spending ... otherwise, of course, the spending power could render academic the Constitution’s other grants and limits of federal authority.” New York v. United States, 505 U.S. at 167. The Tenth Amendment, with its “anti-commandeering” principle, is among “the Constitution’s other ... limits of federal authority” – among those limits that Congress cannot end-run or frustrate by means of the powerful spending power. The law could scarcely be otherwise. The federal government has not sought and will not seek to circumvent the “anti-commandeering principle” by means other than the spending power. It will not use main force to press-gang into federal service the Department’s personnel and the facilities they operate. But coercion achieved by financial starvation is no less effective than coercion achieved at sword’s point. The former may take a little longer than the latter; but it may be more painful, too.
The present petition for writ of habeas corpus is, on its face, a simple matter to adjudicate. There are no criminal charges pending against Petitioner anywhere in Florida. There is no criminal sentence imposed on Petitioner anywhere in Florida. The Department has no desire to hold Petitioner in its custody, and Petitioner has no desire to be held in the custody of the Department. To the extent that the Department continues to hold Petitioner, it is because the Department has been rendered the cat’s paw of ICE, and ICE wishes Petitioner held. Thus the issue posed by the present motion is easily framed: If ICE’s conscription of the Department’s facilities and manpower is unconstitutional, the writ must issue and Petitioner must go free. If ICE’s conscription of the Department’s facilities and manpower is constitutional, the writ must be denied and Petitioner must remain in the actual custody of the Department – and the constructive custody of ICE – until such time as ICE sees fit to dispose of him.
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There can be no suggestion that Petitioner lacks standing to seek habeas corpus on these facts, or to seek it based upon an allegation of violation of the Tenth Amendment. A prisoner who asserts his unlawful confinement by state or local authority has asserted everything necessary to entitle him to be heard by a Florida court on his petition for writ of habeas corpus. Apart from that, all courts are in agreement that Tenth Amendment claims can be brought by individual claimants. Bond v. United States, 564 U.S. 211, 220 (2011) (“The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines [pursuant to the Tenth Amendment]. Her rights in this regard do not belong to a state.”). See also Dillard v. Baldwin County Commissioners, 225 F.3d 1271 (11th Cir. 2000). In Dillard, the court rejected any suggestion that private parties lack standing to assert Tenth Amendment challenges. Dillard, 225 F.3d at 1276. Nor is it the case that “standing to assert Tenth Amendment claims ... [is] contingent on ... [the] assert[ion of] some other constitutional or statutory claim. ... [T]o establish standing to bring a Tenth Amendment claim, just as for any other claim, [a litigant] must show that [he] suffered an injury in fact caused by the challenged action.” Id. at 1276-77. The injury of which Petitioner complains is his continued incarceration by the Department in the complete absence of any Florida charge pending against him, or of any Florida sentence imposed upon him. That injury, he alleges, is the product of the federal government’s having coerced the Department to do its bidding, in violation of the Tenth Amendment.5
5 Thus even if Petitioner were obliged to show an additional constitutional or statutory deprivation as a condition of his asserting his Tenth Amendment claim, but cf. Dillard, supra, he could easily do so. His habeas claim subsumes allegations of violation of his rights under both Florida and federal law to be free from unreasonable search and seizure, to be subjected to no cruel and unusual punishments, to be free from deprivation of liberty without due process of law,
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Respondent, in the very scholarly pleading filed on his behalf, places principal reliance upon Ricketts v. Palm Beach County Sheriff, 985 So. 2d 591 (Fla. 4th DCA 2008). See also Joseph v. Bradshaw, 4 So. 3d 777 (Fla. 1st DCA 2009); but cf. Florida Immigrant Coalition v. Mendez, 2010 WL 4384220, esp. at * n.11 (S.D.Fla. 2010). The facts in Ricketts are superficially similar to those in the case at bar. Ricketts was arrested by local authorities and a reasonable bond was set. Ricketts, 985 So.2d at 591. When he attempted to post that bond, however, he was told that it would not be accepted because of the pendency of an immigration hold. Id. He sought relief by petition for writ of habeas corpus in state circuit court. Id. at 592.
Ricketts made no Tenth Amendment claim. He simply asserted that he was “being illegally detained without any showing of probable cause or judicial oversight,” id., a claim probably intended to invoke the Fourth Amendment and Article I § 12 of the Florida constitution. In effect, he sought an adjudication in state court of the merits of a federal detainer. The Fourth District quite properly held that Ricketts could not “secure habeas corpus relief from the state court on the legality of his federal detainer. The constitutionality of his detention pursuant to [the federal detainer] ... is a question ... for the federal courts.” Id. at 592-93.
That “a state court cannot adjudicate the validity of [a] federal detainer, as the area of immigration and naturalization is within the exclusive jurisdiction of the federal government” – the holding for which Respondent cites Ricketts, see Response at 1 (quoting Ricketts, 985 So.2d at 591) – is indisputably true. Indeed Petitioner Lacroix appears not to dispute it. Whether any detainer filed by ICE as to Mr. Lacroix is legally sufficient and legally efficacious is a question that could be raised only in federal court. Lacroix does not raise it here.
and the like. 12

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Rather, Petitioner argues that the Department, in holding him, acts as no more than handmaiden to the federal government; that the reduction by the federal government of the Department to its mere handmaiden is in utter violation of the “anti-commandeering” principle of the Tenth Amendment; and that Petitioner and all others similarly situated are, by operation of the Tenth Amendment, entitled to relief. Dicta in Ricketts supports these propositions. The sheriff of Palm Beach County, respondent in Ricketts, “will not be holding [Ricketts] pursuant to state authority but pursuant to federal authority.” Id. at 593. Ricketts “would no longer be a state prisoner but a federal detainee,” although in the physical custody of the county. Id. at 592. The petition at bar calls, not for the adjudication of the merits of a given ICE hold served on Respondent – something a state judge would be wholly unable to provide – but for the vindication of rights promised by the Tenth Amendment “to [all] the people” – something any American judge, state or federal, is oath-bound to provide.
Undoubtedly the regulation of immigration and deportation is a prodigious task. Understandably eager to marshal all possible resources for that task, ICE in particular and the executive branch of the federal government in general grasp for assistance wherever and however it is to be found. The infrastructure and human resources of the Miami-Dade Department of Corrections – and, for that matter, those of every local corrections department from coast to coast; which, if nationalized, would constitute a mighty host at ICE’s command – would be of invaluable aid in the performance of ICE’s regulatory mission.
But the price to be paid for that aid was determined, long ago, to be much too high. The price would be the subjugation of state and local governments, the reduction of those governments to mere satrapies of a central government of unlimited and illimitable power. The
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price would be the abandonment of the fundamental constitutional principle that, “The powers
not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” (Emphasis added.)
The “people” to whom the Tenth Amendment refers include the native-born as well as the
naturalized citizen; the native English speaker as well as the speaker for whom English is a
second, or third, language; the scion of old Yankee stock as well as the newcomer who took the
oath of citizenship yesterday. Miami is not, and has never been, a sanctuary city. But America
is, and has always been, a sanctuary country. As I have written elsewhere, “America, perhaps
more than any other nation, was made great not by its leaders but by its people: by the refugees
who were called to begin life anew; by the pioneers who were called to build a nation; by ‘the
homeless, tempest-tossed’ who were called by the light that shone from the ‘lamp beside the
golden door’.” State v. Robaina, 20 Fla. L. Weekly Supp. 406a (Fla. 11th Cir. Ct. 2013) (quoting
Emma Lazarus, “The New Colossus”).6
6 The Statue of Liberty Enlightening the World was dedicated on October 28, 1886. In the torch 300 feet aloft the statue's sculptor, Frederic Bartholdi, pulled the rope that removed the French tricolor from Liberty's face and President Grover Cleveland accepted the statue on behalf of the United States. The torch was lighted that night.
Three years earlier, to assist a campaign to raise funds to complete the construction of the statue's pedestal, Emma Lazarus wrote the sonnet, "The New Colossus." It is inscribed on a bronze tablet in the pedestal:
Not like the brazen giant of Greek fame, With conquering limbs astride from land to land; Here at our sea-washed, sunset gates shall stand A mighty woman with a torch, whose flame Is the imprisoned lightening, and her name Mother of Exiles. From her beacon hand Glows world-wide welcome; her mild eyes command The air-bridged harbor that twin cities frame.
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Of course we must protect our country from the problems associated with unregulated immigration. We must protect our country from a great many things; but from nothing so much as from the loss of our historic rights and liberties.
The petition for writ of habeas corpus is GRANTED. Respondent’s motion to dismiss is respectfully DENIED.
SO ORDERED, in chambers in Miami, Miami-Dade County, Florida, this ____ day of March, 2017.
____________________ Hon. Milton Hirsch Judge, 11th Judicial Circuit cc: all counsel of record
"Keep, ancient lands, your storied pomp!" cries she With silent lips, "Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!"
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COMMUNITY
C
POLICING

AND

PROBLEM

DM – 2

SOLVING

DM – 2 (01/07)

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Table of Contents

Topics:
¾ Introduction ¾ Mission ¾ Vision ¾ Community Policing Values ¾ Objectives ¾ Officers Responsibilities ¾ Sergeants Responsibilities ¾ Lieutenants Responsibilities ¾ Captains Responsibilities ¾ Directors Responsibilities ¾ Investigation Bureau ¾ Administration Bureau ¾ Community Meeting Tracking Form #509

Pages:
1 2 3 4 5-8 9-10 11-12 13-14 15-16 17-19 20-21 22-24 25-28

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Introduction
Community Policing and Problem Solving is the cornerstone of the operational philosophy of the San Francisco Police Department. This manual establishes the key elements of Community Policing and Problem Solving.
Community Policing is a philosophy, a management tool, and an organizational strategy, which promotes a cooperative partnership between police officers and members of the communities they serve. The common goal is to resolve problems and improve the overall sense of safety and security. The Police Department recognizes the partnership with the community and embraces the sharing of ideas, programs, and participation, which are a product of working together to achieve a common goal.
Community Policing is an interactive process between police officers and the citizens who work and live in the neighborhoods patrolled. It is results oriented rather than incident driven, providing a strategy to buttress a community’s ability to produce and maintain attractive and safe neighborhoods.
Police officers, in addition to their law enforcement role, become managers of their beats/sectors and are encouraged to engage in responsible and creative ways to bring about problem resolution.
Community Policing is both a philosophy and an organizational strategy that allows the police and the community to work closely together in new ways to solve the problems of crime, fear of crime, physical and social disorder, and neighborhood decay. Community Policing and Problem Solving give reality to the historic tradition that the police are the public and the public are the police.

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Mission

The mission of the San Francisco Police Department is to protect life and property, work closely with the community by forming partnerships to prevent crime, reduce the fear of crime, apprehend those who commit crimes, and provide a safe environment. This is accomplished by being attentive to the needs of the residents, merchants, and visitors of the City, and by working collaboratively to solve neighborhood problems.

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Vision
The San Francisco Police Department envisions working in conjunction with members of all communities to reduce the incidence of crime through prevention, education, and apprehension of those responsible for crimes. The police / community partnership will create an enhanced sense of safety and security through cooperative efforts to identify activity which leads to crime. The prompt and timely coordination of governmental and community based services to sustain order maintenance is essential to the process. Long term planning and district based initiatives designed to deliver the resources and services to communities will be the result of a partnership based on respect, commitment, and trust.

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Community Policing Values
1. Maintain a respectful and courteous partnership, where the police and communities share ideas, share differences, and find a common ground to achieve what needs to be done.
2. Continuous, open and honest communication must be maintained between the police and the community. Listening without judgment, assessment without bias, and response with compassion, must occur to keep the lines of communication open.
3. Strong leadership must be demonstrated by the Police Department, by civic leaders, and by community representatives. Leaders who are fair minded, empathetic, understanding, and determined, will have the greatest success.
4. Leaders of the Police Department, civic leaders and community representatives must not seek their own personal agenda; they must work on what is best for the community as a whole.
5. Respect for self and others must be encouraged and practiced, while maintaining a high level of responsibility and accountability for all officers and community members alike.
6. Long term results are the goal. Short term needs may be necessary to reach long term sustainable results, not quick fixes or “band aid” solutions. Quick fixes and “band aid” solutions always require more attention and more resources at a later time.
7. Police officers and community members must be equipped with all resources necessary to accomplish their objectives . Adequate time, personnel (both police and community), equipment, and training are necessary for all involved.
8. Information from all available sources must be shared and evaluated. The use of crime data, citizen observations, and analysis of events all contribute to the prevention of crimes, apprehension of criminals and education of police officers and community alike.

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Objectives

1. Establish a working relationship / partnership between police officers and members of all communities.

¾

Conduct outreach efforts through all members of the Police Department.

¾

Patrol officers and investigators will be available to meet with and

coordinate assistance on a 24 hours a day 7 days a week basis.

¾

Focused efforts will be made to encourage those communities who in the

past have been less actively involved with community policing efforts, i.e.:

communities who mistrust, fear, or do not have confidence in police services.

Members include: at risk youths, recent immigrants, crime victims, and public

housing residents.

¾

Focus on getting officers out of the radio cars during their shifts, so they

can develop a working relationship with the members of the community they

serve.

2. Establish a partnership with all City Departments to address needs for City services as identified through Police Community Partnership process.

¾

All officers who become aware of needs, criminal or non-criminal, which

should be addressed by City Departments, will make a written request through

the Director of Community Policing at the Field Operations Bureau, by utilizing

SFPD Form #509.

¾

The Director of Community Policing will act as a liaison with all department

heads to facilitate the delivery of services.

3. Maintain an open and transparent partnership, by which police officers and community members share information, discuss community concerns, and identify the cause of problems that contribute to crime. This partnership must be built on mutual respect and trust.

¾

The community will advise the Department on concerns or perceptions

they have on police protocol and procedures. The Department will educate the

community on police protocol. The community needs to know why police officers

handle certain situations in a particular manner.

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¾

Officers and investigators will treat all community members with respect,

regardless of the background of the community they serve.

¾

The Department will make the community aware of what is occurring in

their geographical area by circulating the information in district station captain’s

newsletters, district station’s e-mail, community newsletters, community

newspapers, and during community meetings.

¾

Police officers will attend community meetings and be prepared to speak

with the community they serve. This will allow the community to become more

familiar with the officers serving them and allow the officers to become more

familiar with the community they serve. This interaction will establish

relationships / partnerships.

¾

Expand the accessibility of the district station captains by ensuring

community members are aware of the captain’s phone number, e-mail address,

and monthly community forum.

¾

The Department, through the district station captain’s newsletters and

Community Policing component on the Departments Web Site, will promote

Community Policing Programs and provide information to those community

members interested in participating.

Examples:

a. Youth activities.

b.

Senior services.

c.

Crime prevention / education, utilizing Safety Awareness For

Everyone (SAFE).

d.

Crime awareness.

e.

Drug awareness and education.

f.

Police resources.

g.

Community courts.

h.

Employee Recognition Report on SFPD Web Site

4. Identify the causes of the problems that contribute to crime, reduce the incidence of crime, increase the sense of safety and security.

¾

Officers will listen to concerns of the community and take the appropriate

measures to address their concerns.

¾

Officers will identify the problem. If the problem is of criminal nature the

officers will address the problem by using the SARA (Scanning, Analysis,

Response, and Assessment) problem solving strategy. Officers will

Complete SFPD Form #509 and submit the form to their Platoon or Watch

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Commander. If the problem does not require Police Department involvement , officers will complete SFPD Form #509 and submit the form to their Platoon or Watch Commander. The Platoon or Watch Commander will forward the SFPD Form #509 to the Director of Community Policing. The Director of Community Policing will forward the information to the proper governmental agency.

¾

Officers will keep the community informed of the progress of their problem

solving strategy, by addressing the community individually and at community

meetings.

¾

Officers will keep a record of their progress in chronological order, and

submit a record of their progress to their commanding officer. If they are

unsuccessful they will start over with a new SARA problem solving strategy. The

problem must be solved, not pushed to a different location. Ignoring or displacing

a problem does not solve the problem, and is not acceptable. The SFPD form

#43, SARA Problem Solving Worksheet, must be completed.

¾

Community Policing Lieutenants and the Director of Community Policing

will work closely with the Community Partnership For Safer Neighborhoods

(CPSN), to insure that the community is connected to the proper agency that can

assist them with their particular need.

5. District station Commanding Officers and the Director of Community Policing will establish a continuous working partnership with community based organizations.

¾

They will meet on a regular basis with neighborhood outreach workers to

share information and coordinate participation in community meetings.

¾

The Director of Community Policing will participate with the Mayor’s Office

of Criminal Justice (MOCJ), and the Community Partnership For Safer

Neighborhoods (CPSN) to identify the roles, duties, and responsibilities that each

neighborhood outreach worker will have in addressing the issues raised by

community members.

6. Train all managers, supervisors, inspectors, and officers in updates of community policing concepts.

¾

Develop a training lesson plan for training recruits at the Police Academy.

¾

Develop a training lesson plan for training of all non-probationary officers

attending Continuous Professional Training (CPT). All training shall be

continuous.

¾

Police officers to receive training on available governmental and private

resources.

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7. Measure the level of citizen satisfaction with services provided by police officers.

¾

Develop a standard customer service survey to be provided to members of

the community who report crimes. Develop a standard for distribution by utilizing

a person’s e-mail to send a survey. It will be measured by electronically sending

out an e-mail and receipt of the response. This response will be reviewed to

improve future performance.

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Patrol and Foot Beat Officers
The primary job of a police officer is to deliver service to the community he/she serves. Because police officers are in all communities all day, every day, they are often times the first to recognize or be approached with problems affecting a community. Properly identifying the problem and securing the services of the appropriate public and private agencies to provide long term resolution to the problem is a basic function of crime prevention, control and order maintenance.
A core element of community policing is the utilization of beat patrol officers who walk the neighborhoods. Unlike traditional officers who may have a lesser connection with the people within the neighborhoods they patrol, community policing beat patrol officers get out of their cars and proactively engage community members throughout the neighborhood to become familiar and personable with residents and merchants. They also develop a keen awareness of neighborhood patterns, and become deeply familiar with issues block by block.
By using the following guideline, officers will be able to address most issues, which affect communities and resolve them to the satisfaction of the community, and relieve officers of having to deal with chronic complaints and excessive calls for service.
¾ Identify and analyze the principal crime, and order maintenance problems within an area, and design strategies to address chronic problems by utilizing the SARA problem solving strategy, or those, which use an inordinate amount of police and or public services.
¾ Attempt to identify primary causes of crime and or order maintenance, i.e. graffiti, large amounts of litter, abandoned properties, etc.
¾ Conduct outreach either directly or through Safety Neighborhood Partnership outreach workers to residential and business communities as well as civic, social, cultural and religious groups.
¾ Have a working knowledge of community leaders, business and merchant associations, and citizen contacts to call upon as resources in your efforts at attaining long term solutions to community problems.
¾ Actively address neighborhood problems, (crime, quality of life, overall sense of safety) which are having a negative affect on a segment of the community.

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¾ Utilize the multitude of public and private agencies in the long term resolution of the problem. Be sure to follow up with the agencies you use to assist and make sure they are doing what is expected of them.
¾ Communication is important. Be open and communicate freely about problems in your district, not only with other officers, but with community members and seek their input and ideas on ways to resolve the problems.
¾ Actively work with innovative as well as traditional means of policing to address crime and order maintenance problems in your district.

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Sergeants / Field Supervisors
Sergeants / Field Supervisors shall reinforce the Department’s commitment to deliver the highest level of service to the communities we serve. Recognize those officers who do a good job of delivering that service through their efforts, or by working in conjunction with other resource agencies. Express the recognition of a job well done in evaluations, commendations, award nominations, and by taking the time to personally inform the officer of your awareness of the outstanding work they are doing.
¾ Emphasize and encourage long term problem solving as the primary method of reducing crime, creating an enhanced sense of safety and security and order maintenance in the community.
¾ Emphasize and encourage innovation, creativity, as well as traditional means of policing to address community problems.
¾ Continuously evaluate and modify efforts, as necessary, to resolve problems and assure long term results.
¾ Utilize the knowledge, skills and abilities of officers and community members alike to develop strategies to address problems and identifying resources available to help the process.
¾ Have a working knowledge of community leaders, business and merchant associations and citizen contacts to call upon as resources in your efforts at attaining long terms solutions to community problems.
¾ Emphasize problem solving as a primary means of producing long term results to community problems.
¾ Discuss possible solutions to problems with officers and community members alike.
¾ Know where to find the resources necessary to assist the patrol officers in their efforts to resolve community problems. Assist the officers in obtaining the internal, as well as external resources needed.
¾ Ensure that officers have adequate resources to assist them in delivering service to the community in the form of long term problem resolution.

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¾ Assist the officers by trying to find ways of freeing them from some duties so they are better able to devote the time necessary to addressing community issues.
¾ Provide positive and constructive feedback to officers who are working at long term problem resolution on behalf of the community.

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Lieutenants
The role of the lieutenant is pivotal in that the position is one of liaison with all parties participating in the Community Policing Partnership Initiative. They must be supportive of the model, its concepts, and philosophy in order for it to succeed. The lieutenant is the manager of the officers on his/her watch and the point of contact with the community members of the police district.
¾ Act as the liaison for the Police Department in all matters of Community Policing Partnership.
¾ Attend meetings of community, neighborhood, business, and all other organizations to provide mutual communication regarding issues occurring in your respective police district.
¾ Review all assessments completed by members of your unit and contact the Director of Community Policing to obtain updated information on the status of submitted assessments.
¾ Act as liaison with outreach workers from Community Partnership for Safer Neighborhoods and other community groups to maintain a sense of issues which are of concern to the community members.
¾ Emphasize problem solving through “situational assessment” by all officers on your watch.
¾ Emphasize customer service to the officers you manage and encourage innovation and creativity on their part in their efforts towards long term problem resolution.
¾ Support the officers in their efforts to address community concerns by providing the time and resources necessary for positive results.
¾ Review, evaluate and recognize the good work done by officers of the watch.
¾ Maintain open and frequent communication with officers and citizens alike to remain informed and assure all are updated on current issues.
¾ Promote the Departments mission, values, and goals.
¾ Assign subordinates to the same sector or beat on a daily basis.

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¾ Try to find “work load reduction strategies” to give your personnel more time to devote to community policing.
¾ Update your commanding officer regarding the process of implemented community policing programs.

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Captains

The commanding officer of a police district shares in the success and failures of the officers they command. Equally sharing in those attributes are the members of the various communities located in the police district. The commanding officer is a very important part of building and strengthening the Community Policing Partnership Initiative, as they work directly with the Community Policing Lieutenants and the members of all communities in the district. Commanding officers must remain actively involved and informed as to all aspects of the Community Policing Partnership activities occurring in their districts. Those who put forth the effort and commitment will share success with the officers under their command and the community members they serve.

¾ Emphasize customer service approach towards the community and your employees.

¾ Encourage and assist the Community Policing Lieutenants with their pivotal role.

¾ Regularly evaluate the performance of all officers under your command as it pertains to Community Policing Partnership activities.

¾ Prepare a quarterly report explaining what specific actions occurred in their district.

Examples: a. b. c. d. e. f.

509 report. Newsletters written. Training administered to officers. Community meetings attended. Articles placed on the Departments Web Site. Community events and programs that officers participated in.

¾ Maintain open and frequent communication with all officers and community members alike to remain informed and assure all are updated on community issues.

¾ Reinforce the commitment of the Department to work with community members to; resolve issues of concern, maintain order, reduce crime, and enhance the sense of safety and security of community members.

¾ Support the officers in their efforts to address community concerns by providing the time and resources necessary for positive results.

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¾ Maintain a good working knowledge of available resources. ¾ De-emphasize traditional indicators of performance which stress quantity and
not quality. ¾ Try to find “work load reduction strategies” to give your personnel more time
to devote to community policing. ¾ Encourage and praise your subordinates’ efforts and successes. ¾ Seek employees’ input and provide feedback on how it was used.

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Director of Community Policing

The Director of Community Policing acts as the liaison for the Police Department with the Mayor’s Office of Criminal Justice, the Mayor’s Officer of Neighborhood Services, Safety Network, Community Partnership for Safer Neighborhoods, and various public agencies, organizations, and associations participating in the Community Partnership for Safe Neighborhoods Program.

One of the primary roles of the Director is that of a “clearinghouse” for all assessment forms submitted by the Police Department and by outreach workers of Community Partnership for Safer Neighborhoods. Working with the full commitment of the Mayor’s Office, the Chief of Police, and various community participants, the Director will engage the services of those agencies necessary to address community problems. In order to bring resolution to community problems the Director:

¾ Will report directly the commander of Field Operations Bureau.

¾ Will meet with the Chief of Police, the DC of Field Operations, and the Director of MOCJ, on a regularly scheduled, bi-weekly basis in order to update them on progress being made on community policing initiatives, to seek their input, and to report any concerns or recommendations.

¾ At the request of the Director, the Chief, and the Director of MOCJ will meet to discuss the progress of community policing efforts.

¾ Will work in partnership with the training division to assist in the development of community policing training curriculum.

¾ Will attend the Community Partnership for Safer Neighborhoods meetings, and assist the groups to ensure that the needs and concerns of their community are being addressed.

¾ Will attend community based organization meetings to ensure their needs and concerns have been addressed and keep the community updated.

¾ Will review and evaluate submitted assessment forms and determine which are police related issues or non-police related issues. Forward all non-police related issues to the Director of MONS for the delivery of services by the agencies deemed necessary to provide long term resolution to the specific problem.

¾ Will regularly review the status of the public safety and quality of life assessments. Keep an open line of communications with the district stations Community Policing

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Lieutenants and Director of MONS, to assure every effort is being made to promptly and efficiently provide the services needed to resolve the problem.
¾ Will work closely with the various community-based organizations to ensure they are meeting specified criteria for community policing and crime prevention and verify that they are assisting in each district based strategy.
¾ Will act as a liaison with the commanding officers and community policing lieutenants at district stations, to provide updates on matters submitted, or to obtain additional information to facilitate the needs of cooperating agencies.
¾ Will meet with all forty district Community Policing Lieutenants on a regular basis to discuss the success of community policing efforts and initiatives and how they can be improved.
¾ Will produce a quarterly report identifying the district station, the number of assessment forms received, those in progress, and the number closed.
¾ Will send “Community Satisfaction Surveys” to those individuals, groups, and organizations that have requested assistance through the Community Partnership for Safe Neighborhoods Program.
¾ May have offices both at the Hall of Justice and City Hall, Mayor's Office of Criminal Justice.
¾ Will be responsible for reviewing existing departmental documentation (e.g., community policing manuals, bulletins, worksheets, resource cards, etc.) and make specific recommendations as to what changes, updating and the like are needed to make them more current, relevant, and helpful.
¾ Will work in partnership with the Training Division to assist the 40 assigned
community policing lieutenants that are liaisons to the community and have responsibility for implementing the community policing policies, procedures, programs and training. District station captains will ensure that these lieutenants oversee the training curriculum for all police officers assigned to their command in their respective districts. They serve as the direct connection between the community and the district stations and are culturally trained and sensitive to each individual neighborhood.
¾ Will work in partnership with the Training Division to develop, update and review community policing training procedures for new recruits and all existing police officers through ongoing in-service training and roll call training. This will serve as a tool to inform police officers throughout the City of new community policing policies and initiatives.
¾ Will work with various entities, both inside and outside the Department, to increase the participation of all communities and non-profit agencies.

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¾ Will arrange and facilitate quarterly meetings with the district station captains, the community organizers, and all 40 community policing lieutenants. These meetings will also include a member of the SFPD Command Staff (Field Operations Bureau) and the Director of the Mayor's Office of Criminal Justice. These meetings, which will rotate among the various district station community rooms, are intended to serve as a forum to discuss best practices, give district updates, share information and keep everyone engaged and create accountability.
¾ As a representative of the Chief of Police, and with members of the Mayor’s Office of Criminal Justice, will attend weekly meetings with the African American Community Police Relations Board and its coalition and collaborative partners to provide updates. These meetings will be limited to one hour in length and be preceded by a formal written agenda delivered in advance of the meeting. The frequency of these meetings will be adjusted by mutual agreement between the Chief of Police, AACPRB, and MOCJ.
¾ Will participate in district station planning sessions involving the SFPD, community organizers, and the community. The goal of these planning sessions is to build a comprehensive plan which will begin with a framework of 5 issues. These issues are: beat patrol schedule and strategy; public health response in the aftermath of violent crime; neighborhood needs assessment; communication protocol; and updated training documents
¾ Will work with all members of all Bureaus of the Department to develop a process whereby each member, at all ranks will participate in training and orientation regarding cultural competence and community policing. Each participant will receive a certificate verifying his or her participation in the training. Culturally competent community policing strategies will be incorporated into all activities of the Police Department.

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Investigations Bureau

It is important for the inspectors in the Investigations Bureau and the officers in the Field Operations Bureau to interact. Purposeful interaction will result in the attainment of a consensus regarding service delivery expectations.

Investigations shall:

¾ Develop a knowledge base about crime thereby becoming an expert about criminal activity within a given community.
¾ Act as a liaison with crime analysts regarding the existence of crime problems and the frequency of their occurrence.
¾ Become the neighborhood crime coordinator by tracking criminal trends, investigating and closing cases. Liaison with patrol officers and the community regarding criminal activity and intelligence.
¾ Assist patrol officers in conducting comprehensive initial investigations, limited follow-up investigations and case closures.
¾ Conduct investigations into criminal activity within an assigned community, assist and coordinate criminal investigations with other investigators.
¾ Structure investigative methods to be based on a team approach, consisting of the investigator, the patrol officer, the patrol supervisor and the community.
¾ Support and promote the concept of community policing within the Department and the community.
¾ Champion the Department and promote its organizational mission, values and goals.
¾ Support Field Operations Bureau in its efforts to building and strengthening the Community Policing Partnership Initiative.
¾ Develop “work-load reduction strategies” to give members more time to devote to community policing.
¾ Maintain a working knowledge of the community policing philosophy, goals, objectives, and programs.
¾ Maintain involvement as a valued part of the community policing team.

20

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¾ Maintain a working knowledge of the resources available within the Department and other government agencies.
¾ Maintain a working knowledge of the resources available within the community.
¾ Locate and organize resources required to implement solutions.
¾ Adopt a customer service approach to performing your duties for internal and external customers.
¾ Work with all employees and citizens to solve community problems.
¾ Use the SARA problem-solving techniques to create innovative solutions.
¾ Share information with other members of the Department for the purpose of solving crimes.
¾ Monitor involvement by non-Departmental resources and follow through to ensure satisfactory results.
¾ If it is necessary to refer a citizen/victim, make the first referral the correct referral.
¾ Be willing to evaluate and improve your performance.
¾ Provide suggestions on ways to prevent crime by analyzing crime trends and developing a strategy to prevent future crimes of a similar nature from occurring.

21

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Administration Bureau

Community policing is not just a “patrol” oriented philosophy. It is a fundamental change in the policing philosophy of the entire Department. In order to achieve our community policing goals, the assistance of all Department members is needed.

Crime Analysis:

¾ Community Policing includes crime analysis and information management to provide a vehicle through which every member of the Department can efficiently manage the SARA Model and the Community Policing approach. The Department’s Management Information Systems serves as a communications network for each officer within the Department.
¾ Crime analysis and information management are interactive systems that aid in integrating operational efforts with identified problems through the efficient management of information. Beat officers and investigators have the capacity within this system to become managers of the communities they serve. It becomes their responsibility to use the systems to support neighborhood needs and commitments.

Cultural Competency:

¾ The related and important notion of cultural competency is the subject of an
additional twenty-eight hours of classroom instruction. Cultural Competency is imparted in presentations by representatives of seven distinct community groups, each of which is allotted either a two or four hour block of time. In these lectures officers are sensitized to the complex realities facing low-income communities, communities of color and other urban communities. The Department recognizes that without a deep understanding of the experiences, needs and challenges in these communities, it would be difficult to fully implement effective community policing strategies.

Training:

¾ The Training Division will play a major role in developing and implementing training programs which will teach officers new skills and help them perform more proficiently. The training will also require focusing on unit training as well as individual training. Unit training will be vital in assisting units in their responsibilities for addressing community problems and delivering appropriate services. In concert with unit training, individual skill training will reinforce the officer skills needed to effectively work within a unit.

22

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Case 3:17-cv-00485-WHO Document 28-10 Filed 03/08/17 Page 26 of 31
¾ The Training Division also will provide training on community policing to the Community and will continue as demonstrated in the Citizens Police Academy.
General Responsibilities:
¾ Support and promote the concept of community policing within the Department and the community.
¾ Champion the Department and promote its organizational mission, values, and goals.
¾ Develop “work-load reduction strategies” to give members more time to devote to community policing.
¾ Maintain a working knowledge of community policing philosophy, goals, objectives, and programs.
¾ Maintain involvement as a valued part of the community policing team.
¾ Maintain a working knowledge of resources available within the Police Department, other government, and private (non-profit) agencies.
¾ Locate and organize resources required to implement solutions.
¾ Adopt a customer service approach to performing your duties for internal and external customers.
¾ Identify, analyze and develop strategies to address problems encountered in your working environment.
¾ Work with all employees and citizens to solve community problems.
¾ Use the SARA problem-solving techniques to create innovative solutions.
¾ Share information with other members of the Department.
¾ Monitor involvement by non-Department resources and follow through to ensure satisfactory results.
¾ If it is necessary to refer a citizen/victim, make the first referral the correct referral.
¾ Be willing to evaluate and improve your performance.

23

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¾ Support the mission of Field Operations Bureau and Investigations Bureau personnel in their community policing approach to problem solving.

24

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Case 3:17-cv-00485-WHO Document 28-10 Filed 03/08/17 Page 28 of 31
“DO NOT MODIFY THIS FORM”
S.F. POLICE DEPARTMENT COMMUNITY MEETING AND ISSUE TRACKING FORM

Check one: ( ) Citizen Contact ( ) Business ( ) Community Group

(complete box (a) & (b) only if at a business or community meeting)

Name of Business or Community Group & Facilitator:

Address of business or group:

(a)

(b)

Information of citizen or contact person.

Name:

Address:

Phone #

Date:

Time:

hrs.

District Station: Number of Attendees:

E-Mail address:

All issues: (Make sure locations and times are listed in this area).
1)

Is SFPD Assistance needed?

( ) YES

( ) NO

2)

( ) YES

( ) NO

3)

( ) YES

( ) NO

Name(s) of Representatives Attending Meeting: SFPD / Mayor’s Office of Neighborhood Services (MONS) Community Partnership for Safer Neighborhoods (CPSN)

1)

4)

Community Representative

1)

4)

2)

5)

2)

5)

3)

(

)

Adult Probation Name:

6)

3)

6)

City Agencies Attending Meeting

(

)

Dept of Public Health Name:

(

)

Mayor’s Office Name:

(

)

Animal Control Name:

(

)

Dept. of Public Works Name:

(

)

Muni Railway / MTA Name:

(

)

Board of Supervisors Name:

(

)

District Attorney Name:

(

)

MOCJ ** Name:

(

)

City Attorney Name:

(

)

Fire Department Name:

(

)

Port Commission Name:

(

)

Dept. of Building Inspection Name:

(

)

Juvenile Probation Name:

(

)

Redevelopment Name:

(

)

Dept. of Parking & Traffic Name:

(

)

Housing Authority Name:

(

)

School District Name:

( ) Other:

** MOCJ = Mayor’s Office of Criminal Justice

Officer Completing This Form:

Date:

Community Policing Lieutenant Review:

Date:

Instructions for District Stations: This form is for documenting police and non police related issues. Once this form is completed by the officer, submit to PC and PC to forward to Community Policing Coordinator @ FOB via e-mail or floppy disk, (Do not fax or send paper copy). This is a tracking form only. It is the sole responsibility of the district station to resolve any police related issues in their district. Non police related issues will be referred to the appropriate agency.

26

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Case 3:17-cv-00485-WHO Document 28-10 Filed 03/08/17 Page 29 of 31
“DO NOT MODIFY THIS FORM”
S.F. POLICE DEPARTMENT COMMUNITY MEETING AND ISSUE TRACKING FORM

4)

( ) YES

( ) NO

5)

( ) YES

( ) NO

6)

( ) YES

( ) NO

7)

( ) YES

( ) NO

8)

( ) YES

( ) NO

9)

( ) YES

( ) NO

10)

( ) YES

( ) NO

11)

( ) YES

( ) NO

12)

( ) YES

( ) NO

26

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Case 3:17-cv-00485-WHO Document 28-10 Filed 03/08/17 Page 30 of 31
“DO NOT MODIFY THIS FORM”
S.F. POLICE DEPARTMENT COMMUNITY MEETING AND ISSUE TRACKING FORM

San Francisco Police Department
SARA Problem Solving Worksheet
Community Policing

Assigned to: Car/Beat#
Sergeant:

Officers:

Problem Information
Location: Date/Time of Problem:
Scan - describe problem:

Contact Information

Name: Address:
Company/Department: Phone #: Day Received by: Date Received:
Mail Person

Night Phone

Analyze: Why does this problem exist ?

Resolution Plan

Response: How do you propose to solve the problem?

Estimated Completion time.
Assessment: What worked and what didn’t? Describe results.

Contact follow up made:

YES

NO

By whom:

Additional response needed? What?

Allied Agencies Utilized or Referrals Made

Agency Contact Person

E-Mail Phone #

Review Dates

Date

Date

Date

Sgt.

Sgt.

Sgt.

Date
Sgt.
26

Completion Certification
Capt. Lt Sgt.

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Case 3:17-cv-00485-WHO Document 28-10 Filed 03/08/17 Page 31 of 31
“DO NOT MODIFY THIS FORM”
S.F. POLICE DEPARTMENT COMMUNITY MEETING AND ISSUE TRACKING FORM

Star #

Date

Officer
Chronological Report
(Mandatory to include Star # for every entry) Time Activity

26

SFPD 509 c (09/06)

 
 Case 3:17-cv-00485-WHO Document 29 Filed 03/08/17 Page 1 of 3

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

REQUEST FOR JUDICIAL NOTICE IN

Plaintiff,

SUPPORT OF CITY AND COUNTY OF SAN

19

FRANCISCO’S MOTION FOR

vs.

PRELIMINARY INJUNCTION

20

DONALD J. TRUMP, President of the United Date:

April 12, 2017

21 States, UNITED STATES OF AMERICA,

Time:

2:00 p.m.

JOHN F. KELLY, Secretary of United States Judge:

Honorable William H. Orrick

22 Department of Homeland Security,

Dept:

Courtroom 2

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: Not set

25

26

27

28

RJN ISO CCSF’s Motion for PI; Case # 17-00485

Case 3:17-cv-00485-WHO Document 29 Filed 03/08/17 Page 2 of 3

1

Plaintiff City and County of San Francisco hereby respectfully requests, pursuant to Federal

2 Rule of Evidence 201, that this Court take judicial notice of the following documents.

3

1. Attached hereto as Exhibit A is a true and correct copy of a memorandum from

4 Michael E. Horowitz, Inspector General, U.S. Department of Justice, to Karol V. Mason, Assistant

5 Attorney General for the Office of Justice Programs, U.S. Department of Justice, entitled “Department

6 of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients,”

7 dated May 31, 2016. This memorandum is posted on the Office of the Inspector General’s official

8 government website, at https://oig.justice.gov/reports/2016/1607.pdf.

9

2. Attached hereto as Exhibit B is a true and correct copy of a letter from Senators

10 Elizabeth Warren and Edward Markey to Tom Price, Secretary of the U.S. Department of Health and

11 Human Services, dated February 27, 2017. The letter is posted on Senator Warren’s official

12 government website alongside sixteen similar letters addressed to the confirmed or nominated heads of

13 other federal agencies, at https://www.warren.senate.gov/files/documents/2017-2-

14 27_Letters_to_Federal_Agencies_re_Trump_Sanctuary_City_EO.pdf.

15

3. Attached hereto as Exhibit C is a true and correct copy of a memorandum from Carlos

16 A. Giménez, Mayor of Miami-Dade County, to Daniel Junior, Interim Director, Miami-Dade County

17 Corrections and Rehabilitation Department, entitled “Executive Order: Enhancing Public Safety in the

18 United States,” dated January 26, 2017.

19

4. Attached hereto as Exhibit D is a true and correct copy of Information Bulletin No.

20 2012-DLE-01issued by Kamala D. Harris, Attorney General of California, entitled “Responsibilities of

21 Local Law Enforcement Agencies under Secure Communities,” dated December 4, 2012.

22

5. Attached hereto as Exhibit E is a true and correct excerpt of the San Francisco Board

23 of Supervisors Board File No. 170092, as of March 6, 2017, for the proposed ordinance to amend the

24 San Francisco Administrative Code, “Non-Cooperation with Identity-Based Registry.”

25

Each of these exhibits is a matter of public record and is therefore subject to judicial notice.

26 Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (a court may

27 judicially notice matters of public record unless the matter is a fact subject to reasonable dispute).

28

Exhibits A, B, C, and D are judicially noticeable because government memoranda, bulletins,

RJN ISO CCSF’s Motion for PI; Case # 17-00485

1

Case 3:17-cv-00485-WHO Document 29 Filed 03/08/17 Page 3 of 3

1 letters, and opinions are matters of public record appropriate for judicial notice. See Brown v. Valoff,

2 422 F.3d 926, 933 n.9 (9th Cir. 2005) (judicially noticing an administrative bulletin); Mack v. S. Bay

3 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take judicial notice of records and

4 reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass’n

5 v. Solimino, 501 U.S. 104, 111 (1991); Interstate Nat. Gas. Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385

6 (9th Cir. 1953) (judicially noticing government agency records and reports).

7

Exhibits A and B are also judicially noticeable because they are posted to official government

8 websites. See Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (judicially

9 noticing information contained on a government website); Paralyzed Veterans of America v.

10 McPherson, No. C 06–4670 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (finding that

11 courts commonly take judicial notice of information and documents on government websites, and

12 citing cases from various jurisdictions).

13

Exhibit E is judicially noticeable because it is an excerpt of the legislative history of a

14 proposed San Francisco ordinance. See Chaker v. Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005)

15 (judicially noticing a state statute’s legislative history); Rabkin v. Dean, 856 F. Supp. 543, 546 (N.D.

16 Cal. 1994) (“The Court may take judicial notice of city charters, city ordinances and resolutions, and

17 the contents and legislative history of a proposed city ordinance or resolution.”).

18 Dated: March 8, 2017

19

DENNIS J. HERRERA

City Attorney

20

RONALD FLYNN

21

JESSE C. SMITH YVONNE R. MERÉ

22

CHRISTINE VAN AKEN TARA M. STEELEY

23

MOLLIE M. LEE SARA J. EISENBERG

24

MATTHEW S. LEE NEHA GUPTA

25

By: /s/ Sara J. Eisenberg

26

SARA J. EISENBERG Deputy City Attorney

27

Attorneys for Plaintiff

28

CITY AND COUNTY OF SAN FRANCISCO

RJN ISO CCSF’s Motion for PI; Case # 17-00485

2

Case 3:17-cv-00485-WHO Document 29-1 Filed 03/08/17 Page 1 of 17
EXHIBIT A

Case 3:17-cv-00485-WHO Document 29-1 Filed 03/08/17 Page 2 of 17

~~". .

U.S. Department of Justice

'\ . .

Office o f the Inspector General

The "Law Enforcement Sensitive" markings on this document were removed as a result of a

sensitivity review and determination by the U.S. Department of Horneland Security, Immigration

and Customs Enforcement.
'jAW ENFORCEMENT SENSITp.lE

May 3 1, 2016 [Re-posted to oigjustice.gov on September 23, 2016, due to a corrected entry in the Appendix, see page 12.]
MEMORANDUM FOR KAROL V. MASON ASS ISTANT ATTORNEY GENERAL
~HE OFFICE OF JUSTICE PROGRAMS

FROM:

MICHAEL E. HOROWI INSPECTOR GENE RAL

SUBJECT:

Departm ent of Ju stice Referral of Allegatio ns of Pote ntial Violation s of 8 U.S.C. § 1373 by Grant Rec ipients

Thi s is in res po nse to you r e- m ail dated April 8, 20 16, wherein you advised the Office of the In spector Ge n eral (OIG) t hat th e Office of Justice Programs (OJP) had "received information th a t indicates that several jurisd ictions [receivin g Q,JP and Office of Viol en ce Against Wo man (OVW) gra nt funds] may be in violation of 8 U.S.C. § 1373 ." With th e e-mail , you provided the OIG a spreadsheet detailing Depa rtm ent grants received by ove r 140 state and local jurisdictions a nd requested that the 01G "investigate th e a llegation s that th e jurisdic tions re fl ected in th e attac hed s pread s heet, who are recipients of funding from th e De partment of Jus tice, are in violation o f 8 U.S.C. Section 1373 ." In a d dition to the spreadsheet, you provided the OIG with a le tter, dated Fe brua ry 26, 20 16, to Attorn ey General Loretta E. Lyn ch from Congressman John Culberson , Cha irman of the House Appropriations Su bcommittee on Co mm erce, Justice, Scien ce, a nd Re lated Agen c ies, regarding whether Departme n t gran t recipie n ts were com plying with fed eral law, particularly 8 U.S.C. § 1373 (Section 1373). Attached to C h airman Culberson's letter to the Attorney Ge neral was a study co nducted by th e Center for Immigration S tudies (C IS) in January 2016, which concluded tha t there are ove r 300 "sanctuary" ju risdic t ions th at refuse to comply w ith U.S. Immigration and Customs E nfo rcement (ICE) detaine rs o r otherwise impede in fo rmatio n sharing with fed e ra l immigration officia ls . l

! Your e-mail also re ferenced a nd attached the 0I0's Jan uary 2007 report, Cooperation oj SCAAP 1State Criminal A/ien Assista nce Program) Recipients in the Removal of Criminal Aliel1s Jrom the Uniled States. In that Congressionally-mandated report, the 0 10 was asked , among other things, to assess whether entities receiving SCAA P funds were "full y cooperating" with the Depart ment of Homeland Secu ri ty's efforts to remove undoc umented criminal aliens from the United S tate s, and whether SCAA P recipie n ts had in effect policies that violated Section

In\W ENFOROEMENT SENSITIVE

Case 3:17-cv-00485-WHO Document 29-1 Filed 03/08/17 Page 3 of 17
LAW ENFORCEMENT SENSITIVE 

The purpose of this memorandum is to update you on the steps we have undertaken to address your question and to provide you with the information we have developed regarding your request. Given our understanding that the Department's grant process is ongoing, we are available to discuss with you what, if any, further information you and the Department's leadership believe would be useful in addressing the concerns reflected in your e-mail.
010 Methodology
At the outset, we determined it would be impractical for the OIG to promptly assess compliance with Section 1373 by the more than 140 jurisdictions that were listed on the spreadsheet accompanying your referral. Accordingly, we judgmentally selected a sample of state and local jurisdictions from the information you provided for further review. We started by comparing the specific Jurisdictions cited in the CIS report you provided to us with the jurisdictions identified by ICE in its draft Declined Detainer Outcome Report, dated December 2, 2014.2 Additionally, we compared these lists with a draft report prepared by ICE that identified 155 jurisdictions and stated that "all jurisdictions on this list contain policies that limit or restrict cooperation with ICE and, as of Q3 FY 2015, have declined detainers."3 From this narrowed list of jurisdictions, we determined, using the spreadsheet provided with your e-mail, which jurisdictions had active OJP and OVW awards as of March 17, 2016, the date through which you provided award information, and received fiscal year (FY) 2015 State Criminal Alien Assistance Program (SCAAP) payments. Lastly, we considered, based on the spreadsheet, the total dollars awarded and the number of active grants and payments made as of March 17,
1373. As we describe later in this memorandum, the information we have learned to date during our recent work about the present matter differs significantly from what OIG personnel found nearly 10 years ago during the earlier audit. Specifically, during the 2007 audit, ICE officials commented favorably to the OIG with respect to cooperation and information flow they received from the seven selected jurisdictions, except for the City and County of San Francisco. As noted in this memorandum, we heard a very different report from ICE officials about the cooperation it is currently receiving. Additionally, our 2007 report found that the SCAAP recipients we reviewed were notifying ICE in a timely manner of aliens in custody, accepting detainers from ICE, and promptly notifying ICE of impending releases from local custody. By contrast, as described in this memorandum, all of the jurisdictions we reviewed had ordinances or policies that placed limits on cooperation with ICE in connection with at least one of the three areas assessed in 2007.
2 At the time of our sample selection we only had a draft version of this report. We later obtained an updated copy which was provided to Congress on April 16, 2016. Although it was provided to Congress, this report was also marked "Draft." The updated draft version of the report did not require us to alter our sample selection.
3 This version of the declined detainer report covered declined detainers from January 1, 2014 through June 30,2015.
2 


Case 3:17-cv-00485-WHO Document 29-1 Filed 03/08/17 Page 4 of 17
LAW ENFORCEMENT SENSITIVE 

2016, and sought to ensure that our list contained a mix of state and local jurisdictions.
Using this process, we judgmentally selected 10 state and local jurisdictions for further review: the States of Connecticut and California; City of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami-Dade County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New York, New York; and Philadelphia, Pennsylvania. These 10 jurisdictions .represent 63 percent of the total value of the active OJP and OVW awards listed on the spreadsheet as of March 17,2016, and FY 2015 SCAAP payments made by the Department.
Section 1373 states in relevant part:'
(a) In General. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any' government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional authority of government entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.
According to the legislative history contained in the House of Representatives Report, Section 1373 was intended "to give State and local officials the authority to communicate with the Immigration and Naturalization Service (INS) regarding the presence, whereabouts, and activities of illegal aliens. This section is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS."4
4 House of Representatives Report, Immigration in the National Interest Act of 1995, (H.R. 2202), 1996, H. Rept. 104-469, https:/ /www.congress.gov/l04/crpt/hrpt469/CRPT­
3 


Case 3:17-cv-00485-WHO Document 29-1 Filed 03/08/17 Page 5 of 17
LAW ENFORCEMENT SENSITIVE 

For the 10 selected jurisdictions, we researched the local laws and policies that govern their interactions with ICE - particularly those governing the ability of the jurisdictions' officers to receive or share information with federal immigration officials. We then compared these local laws and policies to Section 1373 in order to try to determine whether they were in compliance with the federal statute. We also spoke with ICE officials in Washington, D.C., to gain their perspective on ICE's relationship with the selected jurisdictions and their views on whether the application of these laws and policies was inconsistent with Section 1373 or any other federal immigration laws.
The sections that follow include our analysis of the selected state and local laws and policies.
State and Local Cooperation with ICE
A primary and frequently cited indicator of limitations placed on cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction handles immigration detainer requests issued by ICE, although Section 1373 does not specifically address restrictions by state or local entities on cooperation with ICE regarding detainers.5 A legal determination has been made by the Department of Homeland Security (DHS) that civil immigration detainers are voluntary requests.6 The ICE officials with whom we spoke stated that since the detainers are considered to be voluntary, they are not enforceable against jurisdictions which do not comply, and these ICE officials stated further that state and local jurisdictions throughout the United States vary significantly on how they handle such requests.
In our selected sample of state and local jurisdictions, as detailed in the Appendix, each of the 10 jurisdictions had laws or policies directly related to how those jurisdictions could respond to ICE detainers, and each limited in some way the authority of the jurisdiction to take action with regard to ICE detainers. We found that while some honor a civil immigration detainer request when the subject meets certain conditions, such as prior felony
104hrpt469-ptl.pdf (accessed May 24,2016).
5 A civil immigration detainer request serves to advise a law enforcement agency that ICE seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. 8 C.F.R. § 287.7(a)
6 Several courts have reached a similar conclusion about the voluntary nature of ICE detainers. See Galarza v, Szalczyk et al, 745 F.3d 634 (3rd Cir. 2014) (noting that all Courts of Appeals to have considered the character of ICE detainers refer to them as "requests,» and citing numerous such decisions); and Miranda-Olivares v. Clackamas County, 2014 1414305 (D. Or. 2014).
4 


Case 3:17-cv-00485-WHO Document 29-1 Filed 03/08/17 Page 6 of 17
LAW ENFORCEMENT SENSITIVE 

convictions, gang membership, or presence on a terrorist watch list, others will not honor a civil immigration detainer request, standing alone, under any circumstances. ICE officials told us that because the requests are voluntary, local officials may also consider budgetary and other considerations that would otherwise be moot if cooperation was required under federal law.
We also found that the laws and policies in several of the 10 jurisdictions go beyond regulating responses to ICE detainers and also address, in some way, the sharing of information with federal immigration authorities. For example, a local ordinance for the City of Chicago, which is entitled "Disclosing Information Prohibited," states as follows:
Except as otherwise provided under applicable federal law, no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual's parent or guardian. Chicago Code, Disclosing Infonnation Prohibited § 2-173­ 030.
The ordinance's prohibition on a city employee providing immigration status information "unless required to do so by legal process" is inconsistent with the plain language of Section 1373 prohibiting a local government from restricting a local official from sending immigration status information to ICE. The "except as otherwise provided under applicable federal law" provision, often referred to as a "savings clause," creates a potential ambiguity as to the proper construction of the Chicago ordinance and others like it because to be effective, this "savings clause" would render the ordinance null and void whenever ICE officials requested immigration status information from city employees. Given that the very purpose of the Chicago ordinance, based on our review of its history, was to restrict and largely prohibit the cooperation of city employees with ICE, we have significant questions regarding any actual effect of this "savings clause" and whether city officials consider the ordinance to be null and void in that circumstance.7
7 The New Orleans Police Department's (NOPD) policy dated February 28, 2016, and entitled "Immigration Status" also seemingly has a "savings clause" provision, but its language likewise presents concerns. In your April 8 e-mail to me, you attached questions sent to the Attorney General by Sen. Vitter regarding whether the NOPD's recent immigration policy was in compliance with Section 1373. Paragraph 12 of the NOPD policy is labeled "Disclosing Immigration Information" and provides that "Members shall not disclose information regarding . the citizenship or immigration status of any person unless:
(a) Required to do so by federal or state law; or (b) Such disclosure has been authorized in writing by the person who is the subject of the request for information; or
5 


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In addition, whatever the technical implication of the clause generally referencing federal law, we have concerns that unless city employees were made explicitly aware that the local ordinance did not limit their legal authority to respond to such ICE requests, employees likely would be unaware of their legal authority to act inconsistently with the local ordinance. We noted that in connection with the introduction of this local ordinance the Mayor of Chicago stated, "[w]e're not going to turn people over to ICE and we're not going to check their immigration status, we'11 check for criminal background, but not for immigration status."s We believe this stated reason for the ordinance, and its message to city employees, has the potential to affect the understanding of
(c) The person is a minor or otherwise not legally competent, and disclosure is authorized in writing by the person's parent or guardian.
Sub-section (a) applies only when an NOPD employee has an affirmative obligation, i.e., is "required" by federal law, to disclose information regarding citizenship or immigration status. Section 1373, however, does not "require" the disclosure of immigration status information; rather, it provides that state and local entities shall not prohibit or restrict the sharing of immigration status information with ICE. Accordingly, in our view, sub-section (a) of the NOPD policy would not serve as a "savings clause" in addressing Section 1373. Thus, unless the understanding of NOPD's employees is that they are not prohibited or restricted from sharing immigration status information with ICE, the policy would be inconsistent with Section 1373. We did not consider selecting the City of New Orleans to evaluate in this memorandum because it was not listed as a grant recipient on the spreadsheet you provided.
Similarly, the City and County of San Francisco, CA administrative code, Section 12H.2, is entitled "Immigration Status" and provides, "No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision." As with the NOPD policy, a "savings clause" that only applies when a city employee is "required" by federal law to take some action would not seem to be effective in precluding the law from running afoul of Section 1373, which "requires" nothing, but instead mandates that state and local entities not prohibit, or in any way restrict, the sharing of immigration status information with ICE. Thus, as with the NOPD policy, unless the understanding of San Francisco employees is that they are permitted to share immigration status information with ICE, the policy would be inconsistent with Section 1373. According to news reports, last week the San Francisco Board of Supervisors reaffirmed its policy restricting local law enforcement's authority to assist ICE, except in limited circumstances. Curtis Skinner, "San Francisco Lawmakers Vote to Uphold Sanctuary City Policy," Reuters, May 24, 2016, http://www.reuters.com/article/ us-sanfrancisco-immigration-idUSKCNOYG065 (accessed May 26,2016). We did not consider selecting the City and County of San Francisco to evaluate in this memorandum because it was -not listed as a grant recipient on the spreadsheet you provided.
8 Kristen Mack, "Emanuel Proposes Putting Nondetainer Policy On Books," Chicago Tribune, July 11, 2012, http://articles.chicagotribune.com/2012-07-11/news/ct-met-rahm­ emanuel-immigrants-0711-2012 (accessed May 24,2017).
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local officials regarding the performance of their duties, including the applicability of any restrictions on their interactions and cooperation with ICE.
Similarly, we have concerns that other local laws and policies, that by their terms apply to the handling of ICE detainer requests, may have a broader practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, be inconsistent with at least the intent of Section 1373.9 Specifically, local policies and ordinances that purport to be focused on civil immigration detainer requests, yet do not explicitly restrict the sharing of immigration status information with ICE, may nevertheless be affecting ICE's interactions with the local officials regarding ICE immigration status requests. We identified several jurisdictions with policies and ordinances that raised such concerns, including Cook County, Orleans Parish, Philadelphia, and New York City.
For example, the Cook County, Illinois, detainer policy states, "unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, ICE agents shall not be given access to individuals or allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release dates while on duty." Although this policy falls under the heading "Section 46­ 37 - Policy for responding to ICE Detainers" and does not explicitly proscribe sharing immigration status information with ICE, the portion of the prohibition relating to personnel expending their time responding to ICE inquiries could easily be read by Cook County officials and officers as more broadly prohibiting them from expending time responding to ICE requests relating to immigration status. This possibility was corroborated by ICE officials who told us that Cook County officials "won't even talk to us [ICE]."
In Orleans Parish, Louisiana, Orleans Parish Sheriffs Office (OPSO) policy on "ICE Procedures" states that, "OPSO officials shall not initiate any immigration status investigation into individuals in their custody or affirmatively provide information on an inmate's release date or address to ICE." While the latter limitation applies by its terms to information related to release date or address, taken in conjunction with the prior ban on initiating immigration status investigations, the policy raises a similar concern as to the
9 A reasonable reading of Section 1373, based on its "in any way restrict" language, would be that it applies not only to the situation where a local law or policy specifically prohibits or restricts an employee from providing citizenship or immigration status information to ICE, but also where the actions of local officials result in prohibitions or restrictions on employees providing such information to ICE.
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limits it places on the authority of OPSO officials to share information on that topic with ICE.
In Philadelphia, Pennsylvania, the Mayor, on January 4, 2016, issued an executive order that states, in part, that notice of the pending release of the subject of an ICE immigration detainer shall not be provided to ICE "unless such person is being released after conviction for a first or second degree felony involving violence and the detainer is supported by a judicial warrant." According to news reports, the purpose of the order was to bar almost all cooperation between city law enforcement and ICE.I0
In New York City (NYC), a law enacted in November 2014 restricts NYC Department of Corrections personnel from communicating with ICE regarding an inmate's release date, incarceration status, or upcoming court dates unless the inmate is the subject of a detainer request supported by a judicial warrant, in which case personnel may honor the request. The law resulted in ICE closing its office on Riker's Island and ceasing operations on any other NYC Department of Corrections property.
Although the Cook County, Orleans Parish, Philadelphia, and New York City local policies and ordinances purport to be focused on civil immigration detainer request~, and none explicitly restricts the sharing of immigration status with ICE, based on our discussions with ICE officials about the impact these laws and policies were having on their ability to interact with local officials, as well as the information we have reviewed to date, we believe these policies and others like them may be causing local officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all respects. 11 That, of course, would be inconsistent with and prohibited by Section 1373. 12
10 Michael Matza, "Kenney restores 'sanctuary city' status," Philadelphia Inquirer, January 6, 2016, http://articles.philly.com/2016-01-06/news/69541175_1_south­ philadelphia-secure-communities-ice (accessed May 24,2016) and "Kenney rejects U.S. request to reverse 'sanctuary city' status," Philadelphia Inquirer, May 4, 2016,
http://www.philly.com/phillyI news120160504_Kenney_rejects_Homeland_Security_s_requesC
to_reverse_Philadelphia_s_sanctuary_city_status.html (accessed May 24,2016)
11 For example, the Newark, NJ police department issued a "Detainer Policy" instructing all police personnel that "There shall be no expenditure of any departmental resources or effort by on-duty personnel to comply with an ICE detainer request." More generally, Taos County, NM detention center policy states: "There being no legal authority upon which the United States may compel expenditure of country resources to cooperate and enforce its immigration laws, there shall be no expenditure of any county resources or effort by on-duty staff for this purpose except as expressly provided herein."
12 The ICE officials we spoke with noted that no one at DHS or ICE has made a formal legal determination whether certain state and local laws or policies violate Section 1373, and we are unaware of any Department of Justice decision in that regard. These ICE officials were
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Effect on Department of Justice 2016 Grant Funding
We note that, in March 2016, OJP notified SCAAP and JAG applicants about the requirement to comply with Section 1373, and advised them that if OJP receives information that an applicant may be in violation of Section 1373 (or any other applicable federal law) that applicant may be referred to the OIG for investigation. The notification went on to state that if the applicant is found to be in violation of an applicable federal law by the OIG, the applicant may be subject to criminal and civil penalties, in addition to relevant OJP programmatic penalties, including cancellation of payments, return of funds, participation in the program during the period of ineligibility, or suspension and debarment.
In light of the Department's notification to grant applicants, and the information we are providing in this memorandum, to the extent the Department's focus is on ensuring that grant applicants comply with Sec::tion 1373, based on our work to date we believe there are several steps that the Department can consider taking:
• Provide clear guidance to grant recipients regarding whether Section 1373 is an "applicable federal law" that recipients would be expected to comply with in order to satisfy relevant grant rules and regulations; 13
• Require grant applicants to provide certifications specifying the applicants' compliance with Section 1373, along with documentation sufficient to support the certification.
• Consult with the Department's law enforcement counterparts at ICE and other agencies, prior to a grant award, to determine whether, in their view, the applicants are prohibiting or restricting employees from sharing with ICE information regarding the citizenship or immigration status of individuals, and are therefore not in compliance with Section 1373.
• Ensure that grant recipients clearly communicate to their personnel the provisions of Section 1373, including those
also unaware of any legal action taken by the federal government against a state or local jurisdiction to require cooperation.
13 We note that AAG Kadzik's letter to Chairman Culberson dated March 18, 2016, states that Section 1373 "could" be an applicable federal law that with which grant recipients must comply in order to receive grant funds, not that it is, in fact, an applicable federal law.
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employees cannot be prohibited or restricted from sending citizenship or immigration status information to ICE. These steps would not only provide the Department with assurances regarding compliance with Section 1373 prior to a grant award, but also would be helpful to the OIG if the Department were to later refer to the- OIG for investigation a potential Section 1373 violation (as the Department recently warned grant applicants it might do in the future). We would be pleased to meet with you and Department's leadership to discuss any additional audit or investigative efforts by the OIG that would further assist the Department with regard to its concerns regarding Section 1373 compliance by state and local jurisdictions. Such a meeting would allow us to better understand what information the Department's management would find useful so that the OIG could assess any request and consult with our counterparts at the Department of Homeland Security Office of the Inspector General, which would necessarily need to be involved in any efforts to evaluate the specific effect oflocal policies and ordinances on ICE's interactions with those jurisdictions and their compliance with Section 1373. Thank you for referring this matter to the OIG. We look forward to hearing from you regarding a possible meeting.
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OIG Approach

APPENDIX


At the outset, we determined it would be impractical for the OIG to promptly assess compliance with Section 1373 by the more than 140 jurisdictions that were listed on the spreadsheet accompanying your referral. Accordingly, we judgmentally selected a sample of state and local jurisdictions from the information you provided for further review. We started by comparing the specific jurisdictions cited in the CIS report you provided to us with the jurisdictions identified by ICE in its draft Declined Detainer Outcome Report, dated December 2, 2014.14 Additionally, we compared these lists with a draft report prepared by ICE that identified 155 jurisdictions and stated that “all jurisdictions on this list contain policies that limit or restrict cooperation with ICE and, as of Q3 FY 2015, have declined detainers.”15 From this narrowed list of jurisdictions, we determined, using the spreadsheet that you provided with your e-mail, which jurisdictions had active OJP and OVW awards as of March 17, 2016, the date through which you provided award information, and received fiscal year (FY) 2015 State Criminal Alien Assistance Program (SCAAP) payments. Lastly, we considered, based on the spreadsheet, the total dollars awarded and the number of active grants and payments made as of March 17, 2016, and sought to ensure that our list contained a mix of state and local jurisdictions. Using this process we selected the 10 jurisdictions listed in the following table for further review. The dollar figure represents 63 percent of the active OJP awards as of March 17, 2016, and FY 2015 SCAAP payments made by the Department.

Jurisdiction State of Connecticut State of California Orleans Parish, Louisiana New York, New York Philadelphia, Pennsylvania Cook County, Illinois City of Chicago, Illinois Miami-Dade County, Florida Milwaukee, Wisconsin Clark County, Nevada
TOTAL Source: OJP

Total Award Amounts Reported by OJP $69,305,444
$132,409,635 $4,737,964
$60,091,942 $16,505,312
$6,018,544 $28,523,222 $10,778,815
$7,539,572 $6,257,951 $342,168,401

14 At the time of our sample selection we only had a draft version of this report. We later obtained an updated copy which was provided to Congress on April 16, 2016. Although it was provided to Congress, this report was also marked “Draft.” The updated draft version of the report did not require us to alter our sample selection.
15 This version of the declined detainer report covered declined detainers from January 1, 2014 through June 30, 2015.
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The following table lists each of the jurisdictions selected for review by

the OIG and the key provisions of its laws or policies related to ICE civil

immigration detainer requests and the sharing of certain information with ICE,

if applicable.

Provisions of Key Local Laws or Policies

Jurisdiction

Related to Civil Immigration Detainer Requests or

Information Sharing with ICE 16

State of Connecticut

Public Act No. 13-155, An Act Concerning Civil

Immigration Detainers …

The statement of Connecticut

law has been corrected from a (b) No law enforcement officer who receives a civil

prior version of this

immigration detainer with respect to an individual who

memorandum. This correction is in the custody of the law enforcement officer shall

does not affect the analysis or detain such individual pursuant to such civil

conclusions of this

immigration detainer unless the law enforcement official

memorandum. We regret the determines that the individual:

error, and have notified those (1) Has been convicted of a felony;

to whom we sent the

(2) Is subject to pending criminal charges in this state

memorandum of the

where bond has not been posted;

correction.

(3) Has an outstanding arrest warrant in this state;

(4) Is identified as a known gang member in the

database of the National Crime Information Center or

any similar database or is designated as a Security Risk

Group member or a Security Risk Group Safety Threat

member by the Department of Correction;

(5) Is identified as a possible match in the federal

Terrorist Screening Database or similar database;

(6) Is subject to a final order of deportation or removal

issued by a federal immigration authority; or

(7) Presents an unacceptable risk to public safety, as

determined by the law enforcement officer.

(c) Upon determination by the law enforcement officer that such individual is to be detained or released, the law enforcement officer shall immediately notify United States Immigration and Customs Enforcement. If the individual is to be detained, the law enforcement officer shall inform United States Immigration and Customs Enforcement that the individual will be held for a maximum of forty-eight hours, excluding Saturdays, Sundays and federal holidays. If United States Immigration and Customs Enforcement fails to take custody of the individual within such forty-eight-hour period, the law enforcement officer shall release the individual. In no event shall an individual be detained for longer than such forty-eight-hour period solely on the basis of a civil immigration detainer. Approved June 25, 2013

16 Several specific citations to various state and local laws and policies were removed for brevity.

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Jurisdiction State of California
Orleans Parish, Louisiana
New York, New York

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 An act to add Chapter 17.1 (commencing with Section 7282) to Division 7 of Title I of the Government Code, relating to state government….
7282.5. (a) A law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after that individual becomes eligible for release from custody only if the continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy, and only under any of the following circumstances …
Effective Date: October 5, 2013. The Orleans Parish Sheriff’s Office (OPSO) shall decline all voluntary ICE detainer requests unless the individual's charge is for one or more of the following offenses: First Degree Murder; Second Degree Murder; Aggravated Rape; Aggravated Kidnapping; Treason; or Armed Robbery with Use of a Firearm. If a court later dismisses or reduces the individual's charge such that the individual is no longer charged with one of the above offenses or the court recommends declining the ICE hold request, OPSO will decline the ICE hold request on that individual.
Orleans Parish Sheriff’s Office Index No. 501.15, Updated June 21, 2013.
Title: A Local Law to amend the administrative code of the city of New York, in relation to persons not to be detained by the department of correction.
Bill Summary: … The DOC would only be permitted to honor an immigration detainer if it was accompanied by a warrant from a federal judge, and also only if that person had not been convicted of a "violent or serious" crime during the last five years or was listed on a terrorist database. Further, the bill would prohibit DOC from allowing ICE to maintain an office on Rikers Island or any other DOC property and would restrict DOC personnel from communicating with ICE regarding an inmate's release date, incarceration status, or court dates, unless the inmate is the subject of a detainer request that DOC may honor pursuant to the law.
Enacted Date: November 14, 2014, Law No. 2014/058.

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Jurisdiction Philadelphia, Pennsylvania
Cook County, Illinois
City of Chicago, Illinois

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 Executive Order No. 5-16 - Policy Regarding U.S. Immigration and Customs Enforcement Agency Detainer Requests…
NOW, THEREFORE, I, JAMES F. KENNEY, Mayor of the City of Philadelphia, by the powers vested in me by the Philadelphia Home Rule Charter, do hereby order as follows:
SECTION 1. No person in the custody of the City who otherwise would be released from custody shall be detained pursuant to an ICE civil immigration detainer request pursuant to 8 C.F.R. § 287.7, nor shall notice of his or her pending release be provided, unless such person is being released after conviction for a first or second degree felony involving violence and the detainer is supported by a judicial warrant.
Signed by Philadelphia Mayor, January 4, 2016.
Sec. 46-37- Policy for responding to ICE detainers ...
(b) Unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, ICE agents shall not be given access to individuals or allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release dates while on duty.
Approved and adopted by the President of the Cook County Board of Commissioners on September 7, 2011.
Civil Immigration Enforcement Actions – Federal Responsibility §2-173-042 …
(b)(1) Unless an agent or agency is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall:
(A) permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;
(B) permit ICE agents use of agency facilities for investigative interviews or other investigative purpose; or
(C) while on duty , expend their time responding to

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Jurisdiction Miami-Dade County, Florida Milwaukee County, Wisconsin

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 ICE inquiries or communicating with ICE regarding a person’s custody status or release date …
Disclosing Information Prohibited § 2-173-030
Except as otherwise provided under applicable federal law, no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual’s parent or guardian.
Updated November 8, 2012.
Resolution No. R-1008-13: Resolution directing the mayor or mayor’s designee to implement policy on responding to detainer requests from the United States Department of Homeland Security Immigration and Customs Enforcement
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that the Mayor or Mayor's designee is directed to implement a policy whereby Miami-Dade Corrections and Rehabilitations Department may, in its discretion, honor detainer requests issued by United States Immigration and Customs Enforcement only if the federal government agrees in writing to reimburse Miami-Dade County for any and all costs relating to compliance with such detainer requests and the inmate that is the subject of such a request has a previous conviction for a Forcible Felony, as defined in Florida Statute section 776.08, or the inmate that is the subject of such a request has, at the time the Miami-Dade Corrections and Rehabilitations Department receives the detainer request, a pending charge of a nonbondable offense, as provided by Article I, Section 14 of the Florida Constitution, regardless of whether bond is eventually granted.
Resolution passed and adopted by Miami-Dade Mayor, December 3, 2013.
Amended Resolution - File No. 12-135
BE IT RESOLVED, that the Milwaukee County Board of Supervisors hereby adopts the following policy with regard to detainer requests from the U.S. Department of

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Jurisdiction Clark County, Nevada

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 Homeland Security - Immigrations and Customs Enforcement:
1. Immigration detainer requests from Immigrations and Customs Enforcement shall be honored only if the subject of the request: a) Has been convicted of at least one felony or two nontraffic misdemeanor offenses b) Has been convicted or charged with any domestic violence offense or any violation of a protective order c) Has been convicted or charged with intoxicated use of a vehicle d) Is a defendant in a pending criminal case, has an outstanding criminal warrant, or is an identified gang member e) Is a possible match on the US terrorist watch list
Enacted: June 4, 2012 “Recent court decisions have raised Constitutional concerns regarding detention by local law enforcement agencies based solely on an immigration detainer request from the Immigration and Customs Enforcement (ICE). Until this areas of the law is further clarified by the courts, effective immediately the Las Vegas Metropolitan Police Department will no longer honor immigration detainer requests unless one of the following conditions are met:
1. Judicial determination of Probable Cause for that detainer; or
2. Warrant from a judicial officer.
… The Las Vegas Metropolitan Police Department continues to work with our federal law enforcement partners and will continue to provide professional services to the Las Vegas community regardless of their immigration status in United States.
Via Press Release on: July 14, 2014.

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EXHIBIT B

Case 3:17-cv-00485-WHO Document 29-2 Filed 03/08/17 Page 2 of 6
tinitrd ~tatrs ~rnatr
WASHINGTON, DC 20510
February 27, 201 7
The Honorable Tom Price Secretary Department of Health and Human Services 200 Independence Ave., SW Washington, D.C. 20201
Dear Secretary Price:
On January 25, 201 7, President Trump issued an Executive Order directing Administration officials to identify "sanctuary jurisdictions" and cut off all federal grants to those jurisdictions.1 Despite lawsuits challenging the legality of the Order, the Trump Administration appears to be accelerating its efforts to put the Order into effect. Last week, Department of Homeland Security (DHS) Secretary John Kelly issued a memorandum instructing his agency on how to implement the Order,2 and the White House Press Secretary said that the Administration would "do everything we can to respect taxpayers and ensure that your states follow the law."3 Because the Order is unconstitutional and the Administration is not pausing to give the courts time to weigh in, we write to better understand your views and your intentions regarding immediate enforcement against Massachusetts.
Massachusetts is a huge contributor to the federal treasury. We are among the nation's top three states in terms of per capita federal taxes paid, and Massachusetts is also one of only eleven states whose residents actually subsidize the federal government by paying more in federal taxes than we get back.4 Federal funding that actually returns to Massachusetts is vitally important. For example, federal support accounts for nearly $11 billion of our state's annual budget. 5 These funds go to support health insurance for children, affordable housing for
1 "Executive Order: Enhancing Public Safety in the Interior of the United States" (Jan. 25, 2017), at https://www. wh itehouse. gov/the-press-office/2017101 /25/presidential-executive-order-enhancing-pub1ic-safetyinterior-un ited. 2 Memorandum from OHS Secretary John Kelly on Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), at https://www.dhs.gov/sites/default/files/publications/ 17 0220 S1 Enforcement-of-the1mmigration- Laws -to -Serve -the-National - lnterest.pdf. 3 White House Press Briefing, Feb. 23, 20 17. 4 Dave Gilson, Unlike Trump, California Pays Its Taxes, Mother Jones (Fed. 6, 2017), at http://www .motherjones.com/pol itics/2017/02/califomia-federal-taxes-spending-trump 5 Massachusetts Budget & Policy Center, Partnership in Peril: Federal Funding at Risk for State Programs Relied Upon by Massachusetts Residents (Feb. 16, 20 17), at http://www .massbudget.org/report window.php?loc=Partnership-in-Peri l-Federal-Funding-at-Risk.html.
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families, nursing care for veterans, and countless other critical programs.6 By its terms, the President's Executive Order threatens that vital support.
Section 9(a) of the Order directs the Attorney General and DHS Secretary to exercise "discretion" to "ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. [§] 1373 (sanctuary jurisdictions) are not eligible to receive federal grants, except as deemed necessary for enforcement purposes by the Attorney General or the Secretary."7 In turn, 8 U.S.C. § 1373 states that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." The Order also gives the DHS Secretary "the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction."8 That sweeping provision gives the DHS Secretary unilateral authority to arbitrarily jeopardize federal grants to numerous jurisdictions, despite the clear unconstitutionality of such an action.
In recent days, states and localities have begun to grapple with how they will respond to this directive. Some have already begun changing their own laws to avoid risking the loss of vital funding. 9 Despite these threats, however, local leaders in Massachusetts have indicated that they do not intend to be browbeaten into changing their own laws to suit the whims of the President on matters over which he has no legal authority or control. 10 Several jurisdictions, including the Massachusetts cities of Chelsea and Lawrence, 11 have sued the Administration to prevent the implementation of this unconstitutional directive.
Evidently, the purpose of this Order is to punish local jurisdictions that make local law enforcement decisions that the President disagrees with. The President himself has described the Order as a "weapon" against certain cities, 12 while the White House Press Secretary said that the Order "directs the [DHS] secretary to look at ... funding streams that are going to these cities .. . and figure out how we can defund those streams."13
The President has no constitutional authority to direct your agency to withhold grants on these arbitrary terms. First, as the Supreme Court reiterated in its seminal case on the Affordable Care Act in 2012, it is unconstitutional to use the threat of cutting off significant, pre-existing
6 Id. 7 "Executive Order: Enhancing Public Safety in the Interior of the United States" (Jan. 25, 2017), § 9(a), at https://www.whitehouse. gov/the-press-office/2017/01 /25/presidential-executive-order-enhancing-public-safetyinterior-united. 8 Id. § 9(a). 9 Alan Gomez, First 'Sanctuary City' caves to Trump demands, USA Today (Jan. 26, 2017), at http://www.usatoday.com/story/news/2017/01/26/first-sanctuary-city-caves-donald-trump-demands/97111048/. 10 See, e.g., Meghan E. Irons & Cristela Guerra, Walsh rails against Trump, calls immigration actions 'direct attack', Boston Globe (Jan. 25, 2017), at https://www.bostonglobe.com/metro/2017/01/25/walsh-says-boston-willuse-city-hall-itself-last-resort/UtZrLHENkOvEC 1ffj gs7bP/story.html. 11 City ofChelsea & City ofLawrence v. Trump (D. Mass. 2017), at http://lawyerscom.org/wpcontent/uploads/2017 /02/Sanctuary-Cities-Complaint-FINAL-FILED.pdf. 12 Fox News, O'Reilly Factor (Feb. 5, 2017). 13 Daily Press Briefing (Jan. 25, 2017).
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funding to "coerce" a state into adopting a federal policy directive. 14 Where a President openly brags of his desire to use the loss of unrelated funding as a ''weapon" against states and localities, the intent to exert such unconstitutional coercion is obvious.
Second, the Supreme Court has long established that conditions on federal grants must be related "to the federal interest in particular national projects or programs" funded by the grants. 15 The Order contains no such limitation, instead referring explicitly to "all Federal grant money that currently is received by any sanctuary jurisdiction."16 The Order is unconstitutional because it would condition federal grants on compliance with certain federal immigration laws even when those grants are completely unrelated to those areas.
Third, the Supreme Court has also long established that "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation."17 Under this precedent, the Order cannot constitutionally be applied to any grant programs at your agency unless Congress - not the President - has expressly and unambiguously conditioned grants under those programs on compliance in the immigration-related areas discussed in the Order. 18 To the best of our knowledge, few, if any, such conditional grants exist.
Finally, the Order is unconstitutional because it ties federal funds to compliance with 8 U.S. C. § 1373 - which is itself an unconstitutional provision. The Supreme Court has ruled that the federal government cannot "commandeer" state officials by directing them to enforce federal law. 19 Consistent with the federalism principles that animate our system of government and our Constitution, this anti-commandeering principle aims to maintain the "[p]reservation of the States as independent and autonomous political entities."20 Section 1373 prohibits states and localities from telling their own government employees how to do their jobs - one of the most basic aspects of state and local sovereignty - and is therefore unconstitutional.21
14 National Federation ofIndependent Businesses v. Sebelius, 567 U.S._ (2012). 15 South Dakota v. Dole, 483 U.S. 203, 212 (1987) (internal quotations omitted). 16 "Executive Order: Enhancing Public Safety in the Interior of the United States" (Jan. 25, 2017), § 9(c), at https://www.whitehouse.gov/the-press-office/2017/01 /25/presidential-executive-order-enhancing-public-safetyinterior-united. 17 Pennhurst State Sc. & Hosp. v. Halderman, 451 U.S. 1, 17 (198l)(intemal citations omitted). 18 See, e.g., Erwin Chemerinsky, Annie Lai, and Seth Davis, Trump Can't Force "Sanctuary Cities" to Enforce His Deportation Plans, Washington Post (Dec. 22, 2016), at https://www.washingtonpost.com/opinions/trump-cantforce-sancturu:y-cities-to-enforce-his-deportation-plans/2016/ 12/22/421174d4-c7a4- l l e6-85b5766l6a33048d story.html?utm term=.9le9tbb7a0ca; Ilya Somin, Why Trump's Executive Order on Sanctuary Cities in Unconstitutional, Washington Post (Jan. 26, 2017), at https://www.washingtonpost.com/news/volokhconspiracy/wp/2017/01 /26/constitutional-problems-with-trumps-executive-order-on-sancturu:ycities/?utm term=.b2d635bbe605. 19 Printz v. United States, 521 U.S. 898 (1997). 20 Id. at 919. 21 See, e.g., Ilya Somin, Why Trump's Executive Order on Sanctuary Cities in Unconstitutional, Washington Post (Jan. 26, 2017), at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01126/constitutionalproblems-with-trumps-executive-order-on-sanctuary-cities/?utrn term=.b2d635bbe605 ("The anti-commandeering issue raised by Section 1373 has not yet been directly addressed by the Supreme Court (though the law was upheld in a badly flawed lower court decision back in 1999). We cannot be certain what will happen when and if the
3

Case 3:17-cv-00485-WHO Document 29-2 Filed 03/08/17 Page 5 of 6
If the Administration continues to press ahead with this blatantly unconstitutional order, it will lose in court. In the meantime, however, chaos and confusion will reign, as funding for countless vital programs in Massachusetts and other jurisdictions that refuse to be bullied is thrown into question. Every agency head takes an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic" and "bear true faith and allegiance to the same."22 It is your responsibility to act in accordance with that oath.
You and your counsel are no doubt familiar with each of these Constitutional precepts. It is our responsibility to do what we can to make certain that the Constitutional protections of the people in our home state are protected. Therefore, we ask that you answer the following questions:
1. Do you plan to support the President's January 25, 2017 Executive Order?
2. Section 9(a) of the Order authorizes the Attorney General and/or the DHS Secretary to cut off any federal grants disbursed by your agency to a jurisdiction if that jurisdiction is found to be a "sanctuary jurisdiction" under the Order. Please indicate which grants administered by your agency you believe are covered by this order, and your basis for determining that Section 9(a) applies to those grants.
3. Do any of the laws that direct your agency to provide federal grants to state and local jurisdictions explicitly condition those grants on compliance with 8 U.S.C. § 1373? If so, please indicate which grants and provide the relevant corroborating statutory citations. If not, please provide the constitutional rationale for denying such grants disbursed by your agency to any jurisdiction not in compliance with 8 U.S.C. § 1373.
4. Do any of the laws that direct your agency to provide federal grants to state and local jurisdictions expressly condition those grants on whether or not such jurisdictions have been designated as a "sanctuary jurisdiction" under the Order? If so, please indicate which grants and provide the relevant corroborating statutory citations. If not, please provide the constitutional rationale for denying such grants disbursed by your agency to any jurisdiction designated as a "sanctuary jurisdiction" under the Order.
5. If you plan to deny access to pre-existing grants and grant programs disbursed by your agency under the Order, please explain how such action is not unconstitutionally coercive by the standards established in National Federation ofIndependent Businesses v. Sebelius, 567 U.S._ (2012), particularly in light of the President's explicit direction that the Order is intended to be used as a "weapon" against local jurisdictions that do not affirmatively enforce his federal policy preferences.
justices take up this issue. But the principles underlying the Court's anti-commandeering cases should lead it to strike down this law.").
22 5 u.s.c. § 3331.
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Case 3:17-cv-00485-WHO Document 29-2 Filed 03/08/17 Page 6 of 6
6. If the Attorney General and/or the DHS Secretary determine under Section 9(a) of the Executive Order that certain "sanctuary jurisdictions" are ineligible to receive federal grants, will you cut off or otherwise approve cutting off of grants to those jurisdictions? If not, please indicate what actions you intend to take to ensure that those jurisdictions still receive those grants.
Given the importance of these issues, we respectfully request that you respond to these questions as soon as possible.
Sincerely,

~~ ~ .Senator Edward J.

ey

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EXHIBIT C

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Case 3:17-cv-00485-WHO Document 29-4 Filed 03/08/17 Page 1 of 4
EXHIBIT D

Case 3:17-cv-00485-WHO Document 29-4 Filed 03/08/17 Page 2 of 4
Kamala D. Harris, Attorney General

California Department of Justice CALIFORNIA JUSTICE INFORMATION
SERVICES DIVISION Larry Wallace, Director, Division of Law
Enforcement
Subject:
Responsibilities of Local Law Enforcement Agencies under Secure Communities

INFORMATION

BULLETIN

No.
2012-DLE-01
Date:
12-4-12

Contact for information:
Larry Wallace, Director, Division of Law Enforcement 916-319-8200

TO: Executives of State and Local Law Enforcement Agencies
The California Department of Justice (CalDOJ) and the Office of the Attorney General have received inquiries about state and local law enforcement responsibilities under Secure Communities, a federal program administered by the Immigration and Customs Enforcement agency (ICE) of the United States Department of Homeland Security (DHS). These inquiries have included whether local law enforcement must fulfill a federal detainer request even if that agency determines that fulfilling the request would not be consistent with public-safety priorities or the best use of limited local law enforcement resources; and whether a local law enforcement agency may adopt guidelines for fulfilling federal detainer requests. To provide needed clarity on these matters, this bulletin:
 Provides information on the purpose and operation of the Secure Communities program;  Outlines the responsibilities of state and local law enforcement agencies regarding custody of unlawfully
present immigrants subject to federal detainer requests;  Clarifies that individual federal detainers are requests, not commands, to local law enforcement
agencies, who make their own determination of whether to use their resources to hold suspected unlawfully present immigrants; and  Determines that the Secure Communities program does not prohibit local law enforcement agencies from adopting a protocol governing the circumstances under which they will fulfill federal detainer requests.
What is Secure Communities?
DHS implemented the Secure Communities program as a way to identify, detain, and remove from the United States unlawfully present immigrants who have been convicted of a crime and those who pose a threat to public safety. The program does not require California law enforcement agencies to determine an individual’s immigration status or to enforce federal immigration laws.
Secure Communities works when fingerprints taken by state and local law enforcement agencies are sent to CalDOJ to positively identify the arrestee and to check his or her criminal history. In addition to checking its own records, CalDOJ forwards the fingerprints to the FBI’s Criminal Justice Information Services division to search for federal and out-of-state arrest, warrant, and conviction history—an action that is essential both for officer safety and to identify and detain fugitives who may have fled other jurisdictions. Under the Secure Communities program, the FBI forwards the fingerprints to DHS to be checked against immigration and other databases. DHS then sends the immigration response, if any, to the FBI, which sends it, along with any criminal history information, to CalDOJ, which generally delivers all the information to the requesting law enforcement agency.
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Case 3:17-cv-00485-WHO Document 29-4 Filed 03/08/17 Page 3 of 4
If fingerprints match an immigration record, ICE evaluates whether to take action. In deciding how to respond, ICE has purported to use a risk-based approach that classifies arrestees into levels, beginning with those who have serious prior convictions and those who present the greatest threat to public safety, which it has described as a ―worst first‖ approach. If ICE chooses to assume custody of a detainee, it sends an ―Immigration Detainer – Notice of Action‖ (DHS Form I-247) to the jailor asking that the jailor hold the individual for up to 48 hours after he or she would otherwise be released to give ICE time to complete its evaluation or to take the person into immigration custody. Unlike arrest warrants and criminal detainers, however, immigration detainers may be issued by border patrol agents, including aircraft pilots, special agents, deportation officers, immigration inspectors, and other employees of ICE, without the review of a judicial officer and without meeting traditional evidentiary standards.
What Responsibilities Do State and Local Law Enforcement Agencies Have under Secure Communities?
As explained above, the Secure Communities program does not require state or local law enforcement officers to determine an individual’s immigration status or to enforce federal immigration laws. Under the Secure Communities program, anyone who is arrested is automatically screened for immigration violations when his or her fingerprints are sent to the FBI to check for federal and out-of-state criminal history. And while the results of the immigration search generally are returned to the arresting law enforcement agency along with any criminal history, ICE alone evaluates whether to take immigration enforcement action based upon the facts of each case.
Are Local Law Enforcement Agencies Required to Fulfill Individual ICE Immigration Detainers?
No. Local law enforcement agencies in California can make their own decisions about whether to fulfill an individual ICE immigration detainer. After analyzing the public-safety risks presented by the individual, including a review of his or her arrest offense and criminal history, as well as the resources of the agency, an agency may decide for itself whether to devote resources to holding suspected unlawfully present immigrants on behalf of the federal government.
Several local law enforcement agencies appear to treat immigration detainers, sometimes called ―ICE holds,‖ as mandatory orders. But immigration detainers are not compulsory. Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee. (See ICE Website, available at http://www.ice.gov/secure_communities [―Secure Communities imposes no new or additional requirements on state and local law enforcement‖].) We reach this conclusion both because the I-247 form is couched in non-mandatory language and because the Tenth Amendment to the U.S. Constitution reserves power to the states to conduct their affairs without specific mandates from the federal government. Under the Secure Communities program, the federal government neither indemnifies nor reimburses local law enforcement agencies for complying with immigration detainers. (See 8 C.F.R. § 287.7(e).) Under principles of federalism, neither Congress nor the federal executive branch can require state officials to carry out federal programs at their own expense. If such detainers were mandatory, forced compliance would constitute the type of commandeering of state resources forbidden by the Tenth Amendment. (Printz v. United States (1997) 521 U.S. 898, 925 [―The Federal Government . . . may not compel the States to implement, by legislation or executive action, federal regulatory programs‖]; New York v. United States (1992) 505 U.S. 144, 161 [―the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’s instructions‖].)
In a time of shrinking financial resources, a growing range of critical public-safety priorities, limited space for housing prisoners, and layoffs of police officers and sheriffs deputies, it is appropriate that California law enforcement agencies that receive immigration detainer requests consider them carefully and determine what
2

Case 3:17-cv-00485-WHO Document 29-4 Filed 03/08/17 Page 4 of 4 course of action best protects public safety in light of the facts of each case. All efforts must be made to identify, detain, and remove from the United States unlawfully present immigrants who may be dangerous, pose a public-safety risk, or have been convicted of offenses of a serious or violent nature. Any action to the contrary could pose a great risk to public safety. Does the Secure Communities Program Prohibit a Local Law Enforcement Agency from Adopting a Protocol Governing Its Response to ICE Immigration Detainers? No. Immigration detainer requests are not mandatory, and each agency may make its own decision about whether or not to honor an individual request. Accordingly, local law enforcement agencies may establish a protocol to assist them in determining how to respond to a federal request to hold, at the local agency’s own expense, suspected unlawfully present immigrants with minor or no criminal history, so long as any such protocol gives primary consideration to protecting public safety in determining whether to honor a detainer request. Local agencies are best positioned to determine the highest use of local resources, and if the local law enforcement agency determines that releasing certain individuals does not present a risk to public safety, a federal detainer request cannot, by itself, reverse that determination.
###
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EXHIBIT E

Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 2 of 16

City and County of San Francisco Office of the Clerk of
BOARD OF SUPERVISORS

City Hall 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4689

Your attention is hereby directed to the following:

3/6/2017 Date

I, Angela Calvillo, Clerk of the Board of the City and County of San Francisco, California do hereby certify that the annexed, File No. 170092, is a full, true and correct copy of the original thereof on file in this office.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of the City and County of San Francisco, California this 6th day of March, 2017

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 3 of 16

Master Report Continued (170092)

Sommers (Asian Americans Advancing Justice Asian Law Caucus); Ya/la Kari; Hassi Duka/am; Harir Waini; Female Speaker; Male Speaker; Male Speaker; spoke in support of the hearing matter. Dante Cano; spoke in opposition of the hearing matter.

Supervisor Fewer requested to be added as a co-sponsor.

2 Public Safety and Neighborhood Services Committee

02/08/2017 AMENDED

Passed

2 Public Safety and Neighborhood Services Committee

02/08/2017 CONTINUED AS AMENDED

Passed

3 Public Safety and

02/22/2017 AMENDED

Passed

Neighborhood Services

Committee

Heard in Committee. Speakers: Jehan Hakim (Asian Law Caucus); Adele Carrera; Anirvan Chatterjee (Alliance of

South Asians Taking Action); Christine Cordero (Arab Mothers ESL Program); Kitab; Jerry Garber; Female Speaker;

Mudow Alowhoudi; Ria Hakim; Female Speaker; Asu Pau; Sandra Aurou; Elica Vafaie (Asian Americans Advancing

Justice Asian Law Caucus); Omar; Musha; Male Speaker; spoke in support of the hearing matter.

4 Public Safety and Neighborhood Services Committee

02/22/2017 RECOMMENDED AS AMENDED

Passed

4 Board of Supervisors

02/28/2017 AMENDED, AN

AMENDMENT OF THE

WHOLE BEARING NEW

TITLE

Supervisors Yee and Breed requested to be added as co-sponsors.

Passed

5 Board of Supervisors

02/28/2017 PASSED ON FIRST READING AS AMENDED

Passed

City and County ofSan Francisco

Page2

Printed at 9:21am011311117
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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 4 of 16

City and County of San Francisco Master Report

City Hall I Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4689

File Number: 170092 Enacted:

File Type: Ordinance

Status: Unfinished Business-Final Passage
Effective:

Version: 5

In Control: Public Safety and Neighborhood Services Committee

File Name: Administrative Code - Non-Cooperation with Identity-Based Registry

Date Introduced: 01/24/2017

Requester:

Cost:

Final Action:

Comment:

Title: Ordinance amending the Administrative Code to prohibit the City from using resources to create, implement, provide investigation or information for, enforce, or otherwise assist or support any government program requiring the registration of individuals on the basis of religion, national origin, or ethnicity, or creating a database of individuals on the basis of religion, national origin, or ethnicity.

Sponsors: Mayor; Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee and Breed

History of Legislative File 170092

Ver Acting Body

Date Action

Sent To

Due Date Result

President

01/24/2017 ASSIGNED

Public Safety and Neighborhood Services Committee

Clerk of the Board

01/30/2017 REFERRED TO

DEPARTMENT

Referred to the Human Rights Commission, Department of Human Resources, Department of Public Health, Police

Department, Police Commission, Sheriff's Department, Office of the City Attorney, and the Office of the District

Attorney for informational purposes.

Public Safety and

02/08/2017 AMENDED, AN

Passed

Neighborhood Services

AMENDMENT OF THE

Committee

WHOLE BEARING NEW

TITLE

Heard in Committee. Speakers: Mawuli Tugbenyoh (Mayor's Office); Brittni Chicuata (Office of Supervisor Malia

Cohen); Barbara Lopez (Office of Supervisor Jane Kim); Jon Givner (Office of the City Attorney); presented

information and answered questions raised throughout the discussion. Jehan Hakim (Asian Law Caucus); Kesali

Keswali (Arab Resource and Organizing Center); Anirvan Chatterjee (Alliance of South Asians Taking Action);

Hashem Awnal/ah (Yemeni-American Muslim Community Pure Hands, Inc.); Amina; Dave Ful/ah; Rabbi Jason

Radich (Congregation Emanu-EI); Sallah Holodi; Joe Goldman (Jewish Community Relations Council); Rabbi Jessica

Kirschner (Religion Action Center of Reform Judaism); Christine Cordero (Arab Mothers ESL Program); Rachel

Antelabin; Bushra Tanarka Alabsi (Cross Cultural Family Center); Clementine lntikolo; Sohab Du; Elica Vafaie and

Christina Sinha (Asian Americans Advancing Justice Asian Law Caucus); Britney Rose (Council on American-Islamic

Relations, San Francisco Bay Area Chapter); David Cross (Faith in Action); Joyce Shee, Mohsin Mirza, and Miya

City and County ofSan Francisco

Pagel

Printed at 9:21 am 011 311117

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 5 of 16

FILE NO. 170092

AMENDED IN BOARD 2/28/2017

ORDINANCE NO.

1 [Administrative Code - Non-Cooperation with Religionldentity-Based Registry]

2 3 Ordinance amending the Administrative Code to prohibit the City from using resources 4 to create, implement, provide investigation or information for, enforce, or otherwise 5 assist or support any government program requiring the registration of individuals on 6 the basis of religion, national origin. or ethnicity: or creating a database of individuals 7 on the basis of religion. national origin. or ethnicity.

8

NOTE: Unchanged Code text and uncodified text are in plain Arial font.

Additions to Codes are in single-underline italics Times New Roman font.

9

Deletions to Codes are in strikethrough italies Times }'/cw Romtmfont.

Board amendment additions are in double-underlined Arial font.

10

Board amendment deletions are in strikethrough Arial font.

Asterisks (* * * *) indicate the omission of unchanged Code

11

subsections or parts of tables.

12

13

Be it ordained by the People of the City and County of San Francisco:

14

15

Section 1. The Administrative Code is hereby amended by adding Chapter 103 to

16 consist of Sections 103.1, 103.2, 103.3, 103.4, 103.5, 103.6, and 103.7, to read as follows:

17

CHAPTER 103: RELIGION REGISTRY NON-COOPERATION WITH IDENTITY-BASED

18

REGISTRY ORDINANCE

19

20

SEC. 103.J. TITLE.

21

This Chapter 103 shall be known as the Religion Registry Non-Cooperation With ldentity-

22 Based Registry Ordinance.

23
24
25

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 6 of 16

1

SEC. 103.2. FINDINGS AND PURPOSE.

2

(a) From its earliest beginnings. the United States and its citizens have cherished religious

3 freedom. Many of the early settlers from Europe came to America to escape religious

4 persecution, and subsequent 'Naves of immigrants included many refugees from religious

5 oppression. Enshrined in the First Amendment to the Constitution is the admonition that "Congress

6 shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof"

7 Even predating the First Amendment. Article VI ofthe Constitution prohibited, and continues to

8 prohibit. a religious test for any federal office. The California Constitution is in line with its federal

9 counterpart. guaranteeing, in Article 1 Section 4, the "[Oree exercise and enjoyment ofreligion

10 without discrimination or preference" and prohibiting any law "respecting an establishment of

11 religion. "

12

(b) These constitutional pronouncements have been matched in recent decades by legislation

13 recognizing that discrimination based on religion is intolerable in a tree society. As prime examples,

14 the Civil Rights Act of1964 outlaws discrimination on the basis ofreligion in employment and access

15 to public accommodations, the Fair Housing Act of]968 outlaws discrimination on the basis of

16 religion in housing, and the Religious Freedom Restoration Act ofJ993 offers considerable protection

17 against laws which, though neutral in form, place burdens on the tree exercise ofreligion. In

18 California, the Unruh Act protects against religious discrimination in public accommodations, and the

19 Fair Employment and Housing Act protects against religious discrimination in those areas.

20

(c) San Francisco's laws champion the same commitment to religious freedom, tolerance, and

21 diversity that federal and state law recognize. These principles are articulated, for example, in the

22 .findings and policy declaration forming the basis for the Human Rights Commission (Administrative

23 Code, Sections l 2A.l, l 2A.2). It is the official policy ofthe City to eliminate discrimination within the

24 City based on religion. (Police Code, Section 3301.) Following through on that policy, City laws

25

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 7 of 16

1 proscribe religious discrimination in many areas. including public accommodations, employment, and

2 housing. (Police Code, Article 33.)

3

(d) Against this backdrop of.federal, state. and local laws insisting that people not be treated

4 differently because ofreligion - demanding that people be tree to enjoy their religious beliefs,

5 associations. vractices. backgrounds, and identities - any proposal to base a governmental registry on

6 religion or for a governmental entity to compile a database ofindividuals based on religion is

7 anathema to this country, this state. and this city. For government to label people by religion would

8 repudiate our most cherished values.

9

(e) And such a registry or database would be very dangerous. It would demean those in our

10 community included in the registry or database, and would foster the very prejudice and discrimination

11 that federal. state. and local laws are designed to combat. It would teach people that hate. (ear. and

12 suspicion ofreligious minorities is permissible. Misguided individuals could see the registry or

13 database as sanctioning the commission ofhate crimes against religious minorities in general. and

14 especially against those individuals whose religion - or perceived religion - is targeted as the basis for

15 inclusion in the registry or database. At the same time, those individuals the government seeks to label

16 bv religion would naturally be reluctant to interact with government beyond what is absolutely

17 necessary. Cooperation with local law enforcement investigations would likely decline,· use ofthe

18 City's public health facilities, and the provision ofpersonal information related to public health. would

19 likely decline; participation in programs designed to uplift the disadvantaged would likely decline. In

20 these and like circumstances. the entire community - not just the targeted individuals - would suffer.

21

(0 Further. once the government starts classifj;ing people by religion, no one can say where or

22 when the practice will end: which groups will be the subject ofclassification, and which not; how the

23 information will be used by the authorities: and what additional measures, ifanv, will be taken by

24 government toward or against people based on religion. In this regard, history's examples are not

25 comforting. Gross violations ofhuman rights can begin with smaller violations. The first step down

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 8 of 16

1 that road can lead to second. third. and fourth steps that at the beginning would seem-have seemed

2 unimaginable.

3

(g) Notwithstanding this country's fidelity to the principle ofreligious freedom, there have been

4 instances in which we have sometimes fallen short in practicing religious tolerance. Catholics, Jews,

5 Muslims. Sikhs. Jehovah's Witnesses, and some other Protestant sects. among many other faith

6 communities. have at times felt the sting ofreligious bigotry and discrimination. Members ofcertain

7 faith communities have been the victims ofhate crimes. including in recent years most particularly

8 Jews and Muslims. There has been an upsurge in anti-Muslim sentiment in recent vears, as measured

9 bv hate crimes statistics and other social science data. In the modern era, ifnot alwavs in the more

10 distant past, government has acted as a positive force to curb religious bigotry and discrimination. For

11 government to start to classifj; people by religion through a registry or other database wouldput

12 government on a different. more ominous course and would profoundly injure the City's relationship

13 with its residents.

14

(h) A registry of individuals identified by national origin or ethnicity. or a database

15 including that information. could be used by the government as a proxy for determining

16 religion. as many countries and ethnic groups are made up of individuals of predominantly

17 one religion. A registry or database keyed to national origin or ethnicity that is created for

18 purposes of determining the likely religion of the people in the registry or database would be

19 just as offensive to our values. just as damaging to the affected individuals. and just as

20 harmful to our community. as a registry or database based directly on religion. And even if it

21 could not be determined that such a registry or database was created for the purpose of

22 indirectly classifying people by religion. it could. in fact. be used for that puroose. or have that

23 effect.

24

{i) Independent of its possible use to indirectly identify individuals by religion. a registrv

25 or database classifying individuals by national origin or ethnicity would .:... like a classification

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 9 of 16

1 system based on religion - tread on the most fundamental values of our countrv. our state.

2 and our community. Constitutional guarantees of equal protection of the laws cannot be

3 squared with the maintenance of such a registrv or database. Nor can state and City laws

4 prohibiting discrimination based on national origin or ethnicity. Notwithstanding the

5 persistence of ethnic prejudice in some quarters. and its exacerbation in a time of terrorism.

6 eradication of such prejudice is among the highest priorities of all levels of government in the

7 United States. To maintain a registrv or database identifying people by national origin or

8 ethnicity would grossly distort our priorities. and for the worse. And it would ignore the

9 tragedies of historv rooted in ethnic prejudice - such as the tragedy experienced during

1O wartime. not so long ago. by persons of Japanese descent. including American citizens. in

11 California and elsewhere. Rather than soft-pedal the dangers that would abound in a registrv

12 or database identifying individuals by national origin or ethnicity. this City should be ever-

13 vigilant to call out those dangers and. within the limits of the law. should not cooperate in the

14 creation. maintenance. or use of such a registrv or database.

15

m It is the City's intent that this Chapter prevent the use of City resources to assist in

16 any way with a government registrv based on religion. national origin. or ethnicity. and to

17 prevent the City from disclosing personal information regarding any individual that could be

18 used to create such a registry. Nonetheless. and out of abundance of caution. due solely to

19 the existence of Section 1373(a) of Title 8 of the United States Code. this Chapter exempts

20 from its scope the sending to or receiving from a Federal agency charged with enforcement of

21 Federal immigration law information regarding an individual's citizenship or immigration

22 status. It is the City's position that Section 1373(a) is unconstitutional. and the City has filed a

23 federal lawsuit seeking a judgment declaring it as such. See Citv and Countv of San

24 Francisco v. Trump. et al.. Case No. 3:17-cv-00485 (N.D. Cal.). Until the City obtains court

25 relief from Section 1373(a). it will continue to comply with Section 1373(a).

Mayor Lee; SupeNisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 10 of 16

1

SEC. 103.3. DEFINITIONS.

2

For purposes ofthis Chapter 103, the (Ollowing terms have the (Ollowing meanings:

3

"List, Database, or Registry" means any public, private, or joint public-private collection of

4 information stored in any (Orm.

5

"Personal Information" means any in(Ormation that can, on its own or in combination with

6 other information, be used to contact, track. locate, identify. or reasonably infer the identity at: a

7 specific individual.

8

9

SEC. 103.4. ASSISTANCE WITH GOVERNMENT REGISTRY OR DATABASE.

10

(a) No officer, employee, department, board, commission, or other entity ofthe City shall use

11 City moneys. facilities, property, equipment, or personnel to create, implement, provide investigation

12 .for, en(Orce, or assist in the creation, implementation, provision ofinvestigation (Or, or enforcement ot:

13 or provide support in any manner (Or, any government program that (1) creates or compiles a List,

14 Database, or Registry ofindividuals on the basis ofreligious affiliation, kinship, belief: or practice-;~

15 national origin: or ethnicity or (2) requires registration o[individuals in a List, Database, Registrv. or

16 otherwise, on the basis ofreligious affiliation, kinship, beliet: or practice: national origin: or

17 ethnicity.

18

{k) Notwithstanding any other law, no officer, employee, department, board, commission, or

19 other entity o[the City shall provide or disclose to any government authority Personal Information

20 regarding any individual that is requested (or the purpose of(1) creating or compiling a List,

21 Database, or Registry ofindividuals based on religious affiliation, kinship, belier; or practice: national

22 origin: or ethnicity. or (2) requiring registration o(individuals in a List, Database, registry, or

23 otherwise, on the basis ofreligious affiliation, kinship, belief: or practice-:: national origin: or

24 ethnicity. In addition, regardless of the purpose of the request, no such information shall be

25 provided or disclosed to any government authority if it could potentially become part of such a

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 11 of 16

1 List, Database or Registry. This includes a prohibition on making available Personal

2 Information from any City database for the purposes mentioned in the foregoing sentence.

3 including any City database maintained by a private vendor under contract with the City.

4

(c) This Section 103.4 shall apply to all individuals, regardless ofcitizenship or immigration

5 status, race. age. or anv other factor.

6

(d) Nothing in this Chapter 103 prohibits any officer. employee. department. board.

7 commission. or other entity of the City from sending to. or receiving from. any local. state. or

8 federal agency. aggregate information about religious affiliation. kinship. belief. or practice:

9 national origin: or ethnicity within a geographic area. institution. category. or group. where

1O such information is not associated with Personal Information. including but not limited to,

11 names, addresses. and telephone numbers. and cannot be used to identify individuals on the

12 basis of religious affiliation. kinship. belief. or practice: national origin: or ethnicity.

13

(e) Nothing in this Chapter 103 prohibits any officer. employee. department. board.

14 commission. or other entity of the City from sending to. or receiving from. a Federal agency

15 charaed with enforcement of Federal immigration law information regarding an individual's

16 citizenship or immigration status. lawful or unlawful. "Information regarding an individual's

17 citizenship or immigration status. lawful or unlawful" for purposes of this Chapter 103. shall be

18 interpreted consistent with Section 1373 of Title 8 of the United States Code. This subsection

19 (e) shall expire by operation of law if a court of competent jurisdiction enters a judgment ruling

20 8 U.S.C. § 1373(a) facially unconstitutional or unconstitutional as applied to the City.

21

(f) Nothing in this Chapter 103 prohibits the City from creating or maintaining a List.

22 Database. or Registry that contains ethnicity or national origin information where such

23 information is collected for purposes of complying with anti-discrimination laws or laws

24 regarding the administration of public benefits, or for purposes of ensuring City programs

25

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 12 of 16

1 adequately serve the City's diverse communities. or where the City collects this information to

2 ensure equal access to City programs. services. benefits. and contracts.

3

4

SEC. 103.5. ENFORCEMENT AND REPORTING.

5

~ The Director ofthe Human Rights Commission, or his or her designee ("the Director")

6 shall review compliance with this Chapter 103. The Director may initiate and receive complaints

7 regarding violations ofthis Chapter. After conducting an investigation, the Director may issue findings

8 regarding any alleged violation. Ifthe Director finds that a violation occurred. the Director shall,

9 within 30 days ofsuch finding. send a report ofsuch finding to the Board ofSupervisors, the Mayor.

10 and the head ofany department involved in the violation or in which the violation occurred. All

11 officers, employees. departments. boards. commissions. and other entities ofthe City shall cooperate

12 with the Director in any investigation ofa violation ofthis Chapter.

13

{b) By Februarv 1 of each year. each City department shall submit to the Board of

14 Supervisors a written. public report regarding the Department's compliance with this Chapter

15 103 over the previous calendar year. This report. at minimum. must: (1) detail with specificity

16 the steps the department has taken to ensure compliance with this Chapter: (2) disclose any

17 issues with compliance. including any violations or potential violations of this Chapter: and {3)

18 detail actions taken to cure any deficiencies with compliance.

19

20

SEC. 103.6. UNDERTAKING FOR THE GENERAL \lVELFARE CIVIL ACTION.

21

(a) Cause of Action. The City shall be liable in a civil action for a violation of Section

22 103.4(b) filed by either (1) an individual whose Personal Information has been disclosed in

23 violation of Section 103.4(b) of this Chapter or (2) a non-profit organization exempt from

24 taxation pursuant to Title 26. Section 501 of the United States Code. that has the defense of

25

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 13 of 16

1 immigrants' and ethnic minorities' rights as a stated purpose in its articles of incorporation or

2 bylaws.

3

(b) Damages and Civil Penalties. If the City is found liable in a cause of action brought

4 by an individual under section (a)(1) of this Section 103.6. the City shall be liable for (1) the

5 damages suffered by the plaintiff. if any. as determined by the court. and (2) a civil penalty no

6 greater than $5.000 per violation. as determined by the court. If the City is found liable in a

7 cause of action brought by an organization under section (a)(2) of this Section 103.6. the City

8 shall be liable for a civil penalty no greater than $5.000 per violation. as determined by the

9 court: provided that an organization may not recover a civil penalty if a court has already

1O awarded a penalty to an individual or another organization arising out of the same violation.

11 In determining the amount of the civil penalty in any action filed under subsection 103.6(a).

12 the court shall consider: whether the violation was intentional or negligent. and any prior

13 violations of Section 103.4(b) by the City department that committed the violation. For the

14 purpose of this subsection 103.6(b). each disclosure of each individual's Personal Information

15 shall be a separate violation.

16

(c) Attorney's Fees and Costs. A court may award a plaintiff who prevails on a cause

17 of action under subsection (a) of this Section 103.6 reasonable attorney's fees and costs.

18

(d) Limitations on Actions. Any person or entity bringing an action under this Section

19 103.6 must first file a claim with the City under Government Code Section 905 or any

20 successor statute within three years of the alleged violation.

21

(e) Exception. Any disclosure of Personal Information required by a legally

22 enforceable subpoena. judicial warrant. or court order shall not give rise to a cause of action

23 under this Section 103.6.

24

In enacting and implementing this Chapter 103, the City is assuming an undertaking

25 only to promote the general 'Nelfare. It is not assuming, nor is it imposing on its officers and

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer, Tang, Yee, Breed BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 14 of 16

1 employees, an obligation for breach of i.vhich it is liable in money damages to any person vvho

2 claims that such breach proximately caused injuiy.

3

4

SEC. 103. 7. SEVERABILITY.

5

If any section, subsection, sentence, clause, phrase, or word ofthis Chapter 103, or any

6 application thereof to any person or circumstance, is held to be invalid or unconstitutional by a

7 decision ofa court of competent jurisdiction, such decision shall not affect the validity of the remaining

8 portions or applications of this Chapt~r. The Board ofSupervisors hereby declares that it would have

9 passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not

1O declared invalid or unconstitutional without regard to whether any other portion of this Chapter or

11 application thereof would be subsequently declared invalid or unconstitutional.

12

13

Section 2. Effective Date. This ordinance shall become effective 30 days after

14 enactment. Enactment occurs when the Mayor signs the ordinance, the Mayor returns the

15 ordinance unsigned or does not sign the ordinance within ten days of receiving it, or the Board

16 of Supervisors overrides the Mayor's veto of the ordinance.

17

18 APPROVED AS TO FORM:

DENNIS J. HERRERA, City Attorney

19
20 By:~·

BRADLEY A. RUSSI

21

Deputy City Attorney

22

n:\legana\as2017\1700395\01174495.docx

23

24

25

Mayor Lee; Supervisors Cohen, Safai, Farrell, Kim, Ronen, Sheehy, Fewer BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 15 of 16
FILE NO. 170092
REVISED LEGISLATIVE DIGEST
(2/28/2017, Amended in Board)
[Administrative Code - Non-Cooperation with Identity-Based Registry]
Ordinance amending the Administrative Code to prohibit the City from using resources to create, implement, provide investigation or information for, enforce, or otherwise assist or support any government program r~quiring the registration of individuals on the basis of religion, national origin, or ethnicity; or creating a database of individuals on the basis of religion, national origin, or ethnicity.
Existing Law
Current law does not regulate whether the City may provide information to other government entities regarding the religious affiliation, national origin, or ethnicity of any individual or assist other government entities in creating or enforcing a database or registry of individuals based on religious affiliation, national origin, or ethnicity. Current law prohibits the City from discriminating against any individual on the basis of religious affiliation, national origin, and ethnicity.
Amendments to Current Law
The proposed ordinance would prohibit any City entity, employee, or officer from, (1) using City resources to assist in any way with a government program that creates a list, database, or registry of individuals on the basis of religious affiliation, national origin, or ethnicity, or requires registration of individuals on the basis of religious affiliation, national origin, or ethnicity; and (2) disclosing to any government entity personal information regarding any individual for the purposes of creating a list, database, or registry of individuals on the basis of religious affiliation, national origin, or ethnicity. This would include prohibiting the City from making any City databases, including City databases maintained by private contractors, available for purposes of creating a registry based on religious affiliation, national origin, or ethnicity. The ordinance would also prohibit the City from creating a registry of individuals based on their religious affiliation, national origin, or ethnicity. The ordinance would not prohibit the City from collecting and storing information regarding national origin or ethnicity for purposes of compliance with anti-discrimination laws and the administration of public benefits programs, many of which require the collection of this information to ensure nondiscrimination.
The Human Rights Commission is delegated authority to receive and investigate complaints of violations of the ordinance and to issue findings regarding any substantiated violation. Departments must report to the Board of Supervisors annually regarding compliance with the ordinance.

BOARD OF SUPERVISORS

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Case 3:17-cv-00485-WHO Document 29-5 Filed 03/08/17 Page 16 of 16
FILE NO. 170092
The proposed ordinance creates a private right of action against the City for an individual whose personal information has been disclosed in violation of the ordinance. A non-profit organization that has as its purpose the defense of immigrants' and ethnic minorities' rights also has standing to sue the City on behalf of aggrieved individuals. An individual plaintiff who prevails in a suit against the City may recover damages resulting from the violation as well as a $5,000 civil penalty per violation. A non-profit plaintiff can recover a $5,000 civil penalty per violation. But an individual and a non-profit cannot recover a penalty regarding the same violation. A prevailing plaintiff in a case against the City is entitled to recover reasonable attorney's fees and costs.
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BOARD OF SUPERVISORS

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 Case 3:17-cv-00485-WHO Document 30 Filed 03/20/17 Page 1 of 1

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY ATTORNEY

DENNIS J. HERRERA City Attorney

MOLLIE M. LEE DEPUTY CITY ATTORNEY

Direct Dial: Email:

(415) 554-4290 mollie.lee@sfgov.org

March 20, 2017

Hon. William H. Orrick San Francisco Courthouse 450 Golden Gate Avenue San Francisco, CA 94102

Re: CCSF v. Trump, et al.; Case No. 3:17-CV-00485-WHO
Dear Judge Orrick:
We have received inquiries about the Court’s procedures and preferences for amicus briefs in support of the City and County of San Francisco’s motion for a preliminary injunction, filed March 8, 2017 (docket 21). Defendants’ opposition is due March 22, 2017, San Francisco’s reply is due March 29, 2017 and the matter is currently set for hearing on April 12, 2017.
In the related case of County of Santa Clara v. Trump, et. al., Case No. 5:17-cv-00574, the Court issued an Order Regarding Amicus Briefs (docket 40). We respectfully request guidance about whether amici should follow similar procedures in CCSF v. Trump. Specifically:
1. What is the deadline for amicus briefs in CCSF v. Trump? 2. Are the pro hac vice requirements of Northern District of California Local Rule 11-2
waived for the limited purpose of filing a motion for leave to file an amicus brief and the attached amicus brief in CCSF v. Trump? 3. If amici seek leave to file identical briefs in the Santa Clara and San Francisco actions, are there any additional procedures that would facilitate efficient review by the Court?
In accordance with the requirements of Northern District of California Local Rule 11-4(c), we have provided opposing counsel with prior notice of this letter. Thank you for your guidance on these matters.

Very truly yours,
DENNIS J. HERRERA City Attorney

cc: All Counsel (via ECF)

By: /s/ Mollie M. Lee
Mollie M. Lee Deputy City Attorney

FOX PLAZA · 1390 MARKET STREET, FLOOR 6 · SAN FRANCISCO, CALIFORNIA 94102-5408 RECEPTION: (415) 554-3800 · FACSIMILE: (415) 437-4644
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 Case 3:17-cv-00485-WHO Document 33 Filed 03/22/17 Page 1 of 6

1 NICOLE G. BERNER (SBN 187415) CLAIRE PRESTEL (SBN 235649)
2 DEBORAH SMITH LEO GERTNER
3 SERVICE EMPLOYEES INTERNATIONAL UNION
4 1800 Massachusetts Avenue, NW Washington, DC 20036
5 Telephone: (202) 730-7468 Facsimile: (202) 429-5565
6 E-mail: claire.prestel@seiu.org

ANDREW H. BAKER BEESON TAYER & BODINE 483 Ninth Street, Ste. 200 Oakland, CA 94607 Telephone: (510) 625-9700 Facsimile: (510) 625-8275 Email: ABaker@beesontayer.com
Attorneys for Proposed Amicus Curiae American Federation of State County & Municipal Employees (AFSCME) Council 57

7 Attorneys for Proposed Amici Curiae Service Employees International Union, Working
8 Partnerships USA, and UNITE HERE Local 19
9 WILLIAM A. SOKOL (SBN 72740) WEINBERG, ROGER & ROSENFELD
10 1001 Marina Village Parkway, Ste. 200 Alameda, CA 94501
11 Telephone: (510) 337-1001 Facsimile: (510) 337-1023
12 Email: wsokol@unioncounsel.net
13 Attorneys for Proposed Amicus Curiae South Bay AFL-CIO Labor Council
14

JONATHAN H. SIEGEL LATIKA MALKANI SIEGEL LEWITTER MALKANI 1939 Harrison Street, Ste. 307 Oakland, CA 94612 Telephone: (510) 452-5000 Facsimile: (510) 452-5004 Email: jsiegel@sl-employmentlaw.com Email: lmalkani@sl-employmentlaw.com
Attorneys for Proposed Amicus Curiae United Food and Commercial Workers (UFCW), Local 5

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17
CITY AND COUNTY OF SAN FRANCISCO, 18
Plaintiff, 19
v. 20
DONALD J. TRUMP, President of the United 21 States, UNITED STATES OF AMERICA, JOHN
F. KELLY, Secretary of the United States 22 Department of Homeland Security, JEFFERSON
B. SESSIONS, Attorney General of the United 23 States, and DOES 1-100,

24

Defendants.

25

CASE NO. 3:17-cv-00485-WHO

ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE SUPPORTING PLAINTIFF

Date: Time: Dep’t: Judge:

April 12, 2017 2:00 pm Courtroom 2 Hon. William H. Orrick

Date Filed: March 22, 2017

Trial Date: Not yet set

26

27

28
ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33 Filed 03/22/17 Page 2 of 6

1

The Service Employees International Union (“SEIU”), South Bay AFL-CIO Labor Council,

2 American Federation of State County & Municipal Employees (“AFSCME”) Council 57, UNITE

3 HERE Local 19, United Food and Commercial Workers (“UFCW”) Local 5, and Working

4 Partnerships USA seek leave to file a brief amici curiae supporting the County of Santa Clara

5 (“Santa Clara”) and the City and County of San Francisco (“San Francisco”) in their related cases

6 challenging President Trump’s unconstitutional Executive Order regarding “sanctuary

7 jurisdictions.” See Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). Undersigned counsel

8 contacted counsel for the government before filing this administrative motion, and defendants

9 responded that they take no position on the request to file an amici brief.

10

IDENTITIES AND INTERESTS OF AMICI CURIAE

11

Proposed amicus SEIU is an organization of two million members who work in the public

12 sector, in healthcare, and in property services nationwide, including thousands in Santa Clara and

13 San Francisco who are united in SEIU local unions. SEIU Local 521 has 40,000 members in Santa

14 Clara and other parts of the central Bay Area and Central Valley regions, including many members

15 who do public-service work. SEIU Local 1021 has more than 54,000 members who work in local

16 government, non-profit agencies, healthcare programs, and schools throughout Northern

17 California, including many members who work for San Francisco. SEIU 2015 is a union of more

18 than 325,000 homecare and nursing home workers throughout California, including more than

19 64,000 in its Region 5 covering Santa Clara and San Francisco.

20

Proposed amicus South Bay AFL-CIO Labor Council represents 100 local unions in Santa

21 Clara and San Benito Counties. These unions in turn represent over 100,000 local workers, many

22 of whom could be directly affected by the Executive Order on sanctuary cities, and many of whom

23 could be indirectly affected by the local budgetary impact of that Order because they are public

24 employees.

25

Proposed amicus AFSCME Council 57 represents over 26,000 public employees employed

26 at hospitals, health clinics, and other social services agencies located through California, including

27 over 5,300 in Santa Clara County.

28
1 ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33 Filed 03/22/17 Page 3 of 6

1

Proposed amicus UNITE HERE Local 19 represents 3,000 employees in the hospitality

2 industry who work for employers in Santa Clara County. Many of Local 19’s members reside in

3 Santa Clara County and depend on public services provided by Santa Clara County.

4

Proposed amicus UFCW Local 5 (“Local 5”) is a progressive labor union representing

5 30,000 members who work in retail grocery, department stores, retail drug stores, candy stores,

6 jewelry stores, agriculture and food processing, wholesale meat, seafood processing, financial

7 services, education, and the cannabis industry among others. Local 5’s geographic jurisdiction

8 includes much of Northern California, parts of the Central Valley and Central Coast, and extends to

9 Arizona. Local 5’s 30,000 members and their families, including its 5,000 members in Santa Clara

10 County and its 2,000 members in San Francisco County, regularly consume and depend on

11 essential County services that promote public safety, provide public health services, and otherwise

12 provide essential safety-net programs and social services, all of which are imperiled by this

13 Executive Order.

14

Proposed amicus Working Partnerships USA is a community organization that drives the

15 movement for a just economy by bringing together public policy innovation and the power of

16 grassroots organizing. Working Partnerships builds the capacity of working people, low-income

17 neighborhoods and communities of color to lead and govern. Based in Silicon Valley, Working

18 Partnerships tackles the root causes of inequality and poverty by leading collaborative campaigns

19 for good jobs, healthy communities, equitable development and climate justice, and a democracy

20 that works for all.

21

Together proposed amici represent many thousands of Santa Clara and San Francisco

22 residents who both provide and depend on the public services targeted by the unconstitutional

23 Executive Order challenged in these cases. As described in greater detail in the proposed brief, the

24 women and men who belong to the amici unions and who benefit from Working Partnerships

25 USA’s campaigns include Santa Clara and San Francisco public employees who provide services

26 every day to the counties’ most vulnerable residents and who believe their patients and clients will

27 suffer when the plaintiff jurisdictions are denied federal funding. These public employees also

28
2 ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33 Filed 03/22/17 Page 4 of 6

1 worry about what will happen to their own livelihoods and loved ones in the event of severe budget

2 cuts; they are breadwinners who support families, are putting children through college, and, in

3 many cases, are members of immigrant communities themselves.

4

Furthermore, members of the amici unions, beneficiaries of Working Partnerships USA’s

5 campaigns, and their families include many Santa Clara and San Francisco residents who rely on

6 the county programs that will be de-funded by President Trump’s Executive Order. They depend

7 on local government agencies for assistance and services essential to daily life.

8

RELEVANCE AND USEFULNESS OF PROPOSED BRIEF

9

Amici’s proposed brief provides specific additional details about the public programs and

10 services on which Santa Clara and San Francisco residents depend and which face severe budget

11 cuts (and uncertainty) under the challenged Executive Order. In addition, the brief recounts the

12 personal experiences of a number of public employees who work in these jurisdictions and who

13 provide essential services. These employees are the lifeblood of the social safety net: nurses, a

14 doctor, a homecare worker, a child welfare supervisor, and a social worker. They describe the

15 human impact of President Trump’s Order, including harm to their vulnerable clients and patients,

16 harm to their own families who depend on them, and harm to members of immigrant communities

17 who—newly fearful about contact with local government—will avoid seeking services.

18

One public employee whose story is told in the brief, Claudia Nicole Arevalo, currently

19 provides in-home care for three patients, two of whom have no family to help them; Ms. Arevalo

20 functions as their “nurse, housekeeper, psychologist, and chef, all in one.” Another, Lorena

21 Briones, is a social worker whose recent clients have included an individual diagnosed with ALS

22 who was incapable of any self-care; a 95-year-old woman living alone; a quadriplegic young

23 person; a severely autistic young man; and a little girl with paranoid schizophrenia. Residents like

24 these are the true victims of the Executive Order’s vindictive and overbroad attack on public

25 services.

26

Amici believe their proposed brief is relevant and may be of use to the Court in connection

27 with at least two specific arguments advanced by the plaintiff jurisdictions. First, the experiences

28
3 ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33 Filed 03/22/17 Page 5 of 6

1 of these front-line public employees are relevant to Santa Clara’s and San Francisco’s arguments

2 under the Spending Clause, because they show the breadth and depth of the Executive Order’s

3 threat to local jurisdictions’ federally funded programs that have nothing at all to do with

4 immigration enforcement. Second, their experiences, which are emblematic of experiences

5 nationwide, are relevant because they show the irreparable harm that President Trump’s executive

6 order will do here and across the country absent preliminary injunctive relief.

7

CONCLUSION

8

For the foregoing reasons, proposed amici request that their motion be granted and their

9 brief filed.

10

11 Dated: March 22, 2017 12 13 14 15

/s/ Claire Prestel Claire Prestel
NICOLE G. BERNER CLAIRE PRESTEL DEBORAH SMITH LEO GERTNER SERVICE EMPLOYEES INTERNATIONAL UNION

16

Attorneys for Amici Curiae Service Employees

International Union, UNITE HERE Local 19, and

17

Working Partnerships USA

18

WILLIAM A. SOKOL

WEINBERG, ROGER & ROSENFELD 19

Attorneys for Amicus Curiae South Bay AFL-CIO

20

Labor Council

21

ANDREW H. BAKER

BEESON TAYER & BODINE 22

Attorneys for Amicus Curiae American Federation of

23

State County & Municipal Employees (AFSCME)

Council 57 24

JONATHAN H. SIEGEL

25

LATIKA MALKANI

SIEGEL LEWITTER MALKANI 26

Attorneys for United Food and Commercial Workers

27

(UFCW), Local 5

28
4 ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33 Filed 03/22/17 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

I hereby certify that, on March 22, 2017, a copy of the foregoing Administrative Motion for

3 Leave to File Brief Amici Curiae, Brief Amici Curiae, and Proposed Order were filed and served

4 pursuant to the Court’s electronic filing procedures using CM/ECF.

5

6

/s/ Claire Prestel

CLAIRE PRESTEL 7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
5 ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33-1 Filed 03/22/17 Page 1 of 14

1 NICOLE G. BERNER (SBN 187415) CLAIRE PRESTEL (SBN 235649)
2 DEBORAH SMITH LEO GERTNER
3 SERVICE EMPLOYEES INTERNATIONAL UNION
4 1800 Massachusetts Avenue, NW Washington, DC 20036
5 Telephone: (202) 730-7468 Facsimile: (202) 429-5565
6 E-mail: claire.prestel@seiu.org

ANDREW H. BAKER BEESON TAYER & BODINE 483 Ninth Street, Ste. 200 Oakland, CA 94607 Telephone: (510) 625-9700 Facsimile: (510) 625-8275 Email: ABaker@beesontayer.com
Attorneys for Proposed Amicus Curiae American Federation of State County & Municipal Employees (AFSCME) Council 57

7 Attorneys for Proposed Amici Curiae Service

JONATHAN H. SIEGEL

Employees International Union, Working

LATIKA MALKANI

8 Partnerships USA, and UNITE HERE Local 19 SIEGEL LEWITTER MALKANI

9 WILLIAM A. SOKOL (SBN 72740)

1939 Harrison Street, Ste. 307 Oakland, CA 94612

WEINBERG, ROGER & ROSENFELD 10 1001 Marina Village Parkway, Ste. 200

Telephone: (510) 452-5000 Facsimile: (510) 452-5004

Alameda, CA 94501 11 Telephone: (510) 337-1001

Email: jsiegel@sl-employmentlaw.com Email: lmalkani@sl-employmentlaw.com

Facsimile: (510) 337-1023 12 Email: wsokol@unioncounsel.net

Attorneys for Proposed Amicus Curiae United

13 Attorneys for Proposed Amicus Curiae

Food and Commercial Workers (UFCW), Local 5

South Bay AFL-CIO Labor Council 14

UNITED STATES DISTRICT COURT 15

NORTHERN DISTRICT OF CALIFORNIA 16

17 CITY AND COUNTY OF SAN FRANCISCO,

18

Plaintiff,

19

v.

20 DONALD J. TRUMP, President of the United States of America, UNITED STATES OF
21 AMERICA, JOHN F. KELLY, Secretary of the United States Department of Homeland Security,
22 JEFFERSON B. SESSIONS, Attorney General of the United States, and DOES 1-100,
23
Defendants. 24

CASE NO. 3:17-cv-00485-WHO [PROPOSED] BRIEF AMICI CURIAE

Date: Time: Dep’t: Judge:

April 12, 2017 2:00 pm Courtroom 2 Hon. William H. Orrick

Date Filed: March 22, 2017

Trial Date: Not yet set

25

26

27

28
[PROPOSED] BRIEF AMICI CURIAE Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33-1 Filed 03/22/17 Page 2 of 14

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES.............................................................................................................. ii

3 INTRODUCTION.............................................................................................................................. 1

4 ARGUMENT ..................................................................................................................................... 1

5 I. 6

The Challenged Executive Order Undermines the Health and Well-Being of Millions of Residents and Workers. ....................................................................................... 1

II. The Human Impact of Executive Order 13768 ...................................................................... 5 7

A. Impact on Public Hospitals......................................................................................... 5 8

B. Impact on Public-Health Workers .............................................................................. 7 9

C. Impact on Social Services .......................................................................................... 8 10

CONCLUSION ................................................................................................................................ 10 11

12

13

14

15

16

17

18

19

20

21

22

23

24

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Statutes

4 California Welfare & Institutions Code §17000 .................................................................................2

5 Other Authorities

6 Am. Public Health Ass’n, The Role of Public Health in Ensuring Healthy

Communities (Jan. 1, 1995) (Policy Statement No. 9521(PP)) .....................................................3

7

Laurel Beck, Pub. Policy Inst. of Cal., Cal.’s In-Home Support Program (Nov.

8

2015) ..............................................................................................................................................4

9 Jane Wishner, et al., A Look at Rural Hospital Closures and Implications for Access

to Care: Three Case Studies, The Kaiser Comm’n on Medicaid & the

10

Uninsured: Issue Br. (July 2016)...................................................................................................2

11 Charles Liu, et al., California Emergency Department Closures Are Associated with

Increased Inpatient Mortality at Nearby Hospitals, 33(8) Health Affairs 1323–

12

1329 (2014) ...................................................................................................................................3

13 Katherine Neuhausen, et al., Disproportionate Share Hospital Payment Reductions

May Threaten Financial Stability of Safety-Net Hospitals, 33(6) Health Affairs

14

988–96 (2014) ...............................................................................................................................2

15 Patricia A. Schene, Past, Present, and Future Roles of Child Protective Servs., 8(1)

Protecting Children From Abuse & Neglect 23–38 (Spring 1998) ...............................................4

16

Paul Campbell Erwin, M.D., D.P.H., et al., Resources That May Matter: The Impact

17

of Local Health Department Expenditures on Health Status, 127 Pub. Health

Reports 89 (2012) ..........................................................................................................................3

18

Executive Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) ...............................................................1

19

Tuberculosis Control Branch, Cal. Dep’t of Pub. Health, Responsibilities of Pub.

20

Health Dep’ts to Control Tuberculosis .........................................................................................3

21 Thomas R. Frieden, M.D, M.P.H., Government’s Role in Protecting Health and Safety, 368 N. Eng. J. Med. 1857 (2013) ......................................................................................3
22

23

24

25

26

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1

INTRODUCTION

2

Amici together represent and advocate for millions of employees nationwide, including

3 many in the County of Santa Clara (“Santa Clara”) and the City and County of San Francisco (“San

4 Francisco”) who provide and depend on the public services threatened by President Trump’s

5 unconstitutional Executive Order. SEIU members, for example, work in Santa Clara and San

6 Francisco as public-employee doctors, nurses, homecare aides, and family support specialists. The

7 important work they do and services they provide are described in Part I of this brief; Part II tells of

8 their specific personal experiences and their concerns about the harm the Executive Order will do

9 to their patients and clients, to their own families, and to the trust in public-service professionals

10 that is essential to the care they provide.

11

The stories of these front-line workers are relevant to Santa Clara’s and San Francisco’s

12 arguments under the Spending Clause, because they show the breadth and depth of the Executive

13 Order’s impact on local jurisdictions’ federally funded programs that have nothing to do with

14 immigration enforcement. These workers’ experiences, which are emblematic of experiences

15 nationwide, are also relevant because they show the irreparable harm that President Trump’s

16 unlawful Order will do to public employees and people across the country. Indeed, Santa Clara,

17 San Francisco, and jurisdictions across the United States are already weighing an impossible choice

18 between two forms of irreparable harm to their workers and residents: Either they eliminate jobs

19 now to protect their budgets from the federal government’s failure to reimburse for costs incurred,

20 or they operate under a cloud of fiscal disarray.

21

ARGUMENT

22 I. The Challenged Executive Order Undermines the Health and Well-Being of Millions of Residents and Workers.
23 President Trump’s Executive Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017), poses an
24 immediate threat of irreparable harm to the over 2.7 million residents,1 thousands of public
25

26

27

1 Cnty. of Santa Clara’s Mot. for Prelim. Inj. 1; City & Cnty. of San Francisco’s First Am. Compl. for Declaratory & Inj. Relief ¶109.

28
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1 employees, and essential public institutions and economies of Santa Clara and San Francisco—

2 harm that will be replicated in jurisdictions across the country if an injunction is not entered.

3

The Executive Order threatens Santa Clara’s and San Francisco’s receipt of $2.9 billion in

4 federal funds—funds that support Santa Clara’s Valley Medical Center, Social Services Agency,

5 Public Health Department, and Office of Emergency Services, as well as San Francisco’s Human

6 Services Agency, Department of Public Health, Department of Emergency Management,

7 Department of Transportation, and other crucial public programs. These vital community

8 institutions protect and improve the health and well-being of Santa Clara’s and San Francisco’s

9 residents by ensuring that experienced and skilled public employees provide necessary services.

10

Indeed, California counties have a legal responsibility to provide health care to their

11 indigent populations, see California Welfare & Institutions Code §17000, and county hospitals and

12 public health departments enable Santa Clara and San Francisco to comply with this obligation.

13 Santa Clara and San Francisco County hospitals, such as the award-winning Valley Medical Center 14 and Zuckerberg San Francisco General Hospital,2 provide high quality, cost-effective medical care

15 to all residents of the Counties regardless of their ability to pay. These safety-net hospitals care for

16 the most vulnerable patients in the health care system, providing extensive services, both inpatient

17 and outpatient care, to Medicaid and uninsured patients. See, e.g., Katherine Neuhausen, et al.,

18 Disproportionate Share Hospital Payment Reductions May Threaten Financial Stability of Safety-

19 Net Hospitals, 33(6) Health Affairs 988–96 (2014). Funding cuts to county hospitals have serious 20 consequences for patients, including the loss of emergency medical care3 and reduced access to

21 cancer treatments, intensive care beds, and surgery. One of the ripple effects caused by reduced

22

2 Valley Medical Center has received honors and awards for excellence from the March of 23 Dimes, American Diabetes Association, Veterans Affairs Department, and others. See

24

https://www.scvmc.org/about/Pages/awards.aspx. Zuckerberg San Francisco General Hospital is an international leader in HIV/AIDS care and the only Level 1 Trauma Center in San Francisco

and Northern San Mateo County. See http://zuckerbergsanfranciscogeneral.org/about-the25 hospital/.

26

3 Jane Wishner, et al., A Look at Rural Hospital Closures and Implications for Access to

27

Care: Three Case Studies, The Kaiser Comm’n on Medicaid & the Uninsured: Issue Br. (July 2016), http://files.kff.org/attachment/issue-brief-a-look-at-rural-hospital-closures-and-

implications-for-access-to-care. 28
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1 access to emergency treatments is increased hospital admission rates resulting in death. See, e.g.,

2 Charles Liu, et al., California Emergency Department Closures Are Associated with Increased

3 Inpatient Mortality at Nearby Hospitals, 33(8) Health Affairs 1323–1329 (2014).

4

Public health departments focus on prevention to protect their populations from illness,

5 disease, and injuries. See Am. Public Health Ass’n, The Role of Public Health in Ensuring Healthy

6 Communities (Jan. 1, 1995) (Policy Statement No. 9521(PP)). The Santa Clara and San Francisco

7 Public Health Departments comprise dozens of programs and services addressing the specific

8 health needs of their communities, ranging from lowering tuberculosis rates, combating Zika

9 dangers, monitoring HIV/AIDS, and preventing the damaging effects of lead poisoning, to working

10 with high risk mothers and babies. See Santa Clara Cnty. Pub. Health Dep’t,

11 https://www.sccgov.org/sites/sccphd/en-us/aboutus/Pages/default.aspx; San Francisco Dep’t of

12 Pub. Health, https://www.sfdph.org/dph/default.asp. Law mandates some public health department

13 activities, such as the diagnosis and treatment of tuberculosis. See Tuberculosis Control Branch,

14 Cal. Dep’t of Pub. Health, Responsibilities of Pub. Health Dep’ts to Control Tuberculosis,

15 http://www.ctca.org/filelibrary/Responsibilities of Public Health Departments to Control

16 Tuberculosis_6-24-13_final.pdf.

17

Public health departments bring economic and productivity gains to their jurisdictions by

18 saving millions of dollars in healthcare costs. One study found that each $10 increase in per capita

19 health department expenditures leads to a 7.4% decrease in infectious-disease mortality. See Paul

20 Campbell Erwin, M.D., D.P.H., et al., Resources That May Matter: The Impact of Local Health

21 Department Expenditures on Health Status, 127 Pub. Health Reports 89 (2012). “When

22 government fails to protect and improve people’s health, society suffers.” Thomas R. Frieden,

23 M.D, M.P.H., Government’s Role in Protecting Health and Safety, 368 N. Eng. J. Med. 1857

24 (2013).

25

County social service agencies promote the economic and social well-being of individuals

26 and communities, serving seniors, dependent adults, children, and the disabled. Santa Clara

27 County’s Social Services Agency and San Francisco’s Human Services Agency offer In-Home

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1 Supportive Services to eligible aged, blind, and disabled residents who, without care, would be

2 unable to remain safely in their own homes. These programs divert chronically impaired people

3 from nursing homes by providing quality services at lower costs. Laurel Beck, Pub. Policy Inst. of

4 Cal., Cal.’s In-Home Support Program (Nov. 2015), http://www.ppic.org/main/publication_

5 show.asp?i=1169. The protection of children from child abuse is also a primary function of the

6 Santa Clara and San Francisco agencies: Social workers screen and investigate reports of child

7 abuse and neglect, and ensure that children are protected while emphasizing less restrictive

8 placement alternatives. Patricia A. Schene, Past, Present, and Future Roles of Child Protective

9 Servs., 8(1) Protecting Children From Abuse & Neglect 23–38 (Spring 1998).

10

Within these departments and agencies, public workers are the lifeblood of the community

11 safety net, providing world-class health care, nursing the sick, caring for seniors and disabled

12 individuals, keeping neighborhoods safe, educating children, and providing other essential services

13 for all who live and work in Santa Clara and San Francisco. The Counties’ physicians, public-

14 health nurses, and homecare workers are on the front line of the healthcare system, responsible for

15 integrating culturally sensitive hospital and in-home care. The Counties’ social workers protect

16 children and the elderly from abuse; their public health advocates ensure that individuals affected

17 by mental illness have safe, supportive environments; and their emergency dispatchers give

18 childbirth and CPR instructions over the phone while sending firemen, EMT staff, and sheriff’s

19 deputies to emergency situations. Ultimately, the Counties’ health and social service workers are

20 the foundation for planning, delivering, and managing Santa Clara’s and San Francisco’s complex

21 infrastructures of critical public services.

22

The individuals whose experiences and concerns are recounted below are workers in Santa

23 Clara’s and San Francisco’s county hospitals, public health departments, and social service

24 agencies. They have chosen to work for these county institutions because of their deep

25 commitment to providing comfort and service to those in need, and because of their belief in

26 working for the public good. The experiences of these women and men illustrate the importance of

27

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1 this case to millions of individuals and families, working people in these Counties and beyond, and

2 the nation as a whole.

3 II. 4

The Human Impact of Executive Order 13768 A. Impact on Public Hospitals

5

Nurses and doctors who work in the public-hospital system understand that federal funding

6 cuts will be catastrophic for public health and that President Trump’s Order, which seeks to compel

7 county agencies to engage in immigration enforcement, will foster distrust of county workers and

8 discourage immigrant families from seeking care.

9

Nurse Sasha Cuttler, who helps oversee quality and safety programs at Zuckerberg San

10 Francisco General Hospital, worries that the Executive Order will affect public-health funding.4

11 Mr. Cuttler is a 56-year-old city resident and member of SEIU Local 1021, has been a nurse since

12 1985, and has dedicated his career to making improvements to public health. He notes that among

13 its many roles, San Francisco General maintains the only psychiatric emergency room and trauma

14 center in the city, provides health services for jails in San Francisco, and operates a rape crisis

15 center.

16

Mr. Cuttler has a particular expertise in tuberculosis, having written a doctoral dissertation

17 about control of the disease in San Francisco. In his research, Mr. Cuttler found that tuberculosis

18 survival rates were tied to the city’s provision of publicly funded, no-cost care, which allowed San

19 Francisco to achieve lower infection rates and mortality levels than other cities. He believes that

20 the Executive Order’s anti-immigrant animus will further escalate fear among immigrant

21 communities and lead patients not to seek care for infectious disease and other conditions: “Public

22 health has no borders and making people afraid to accept care is a recipe for epidemic disease.

23 That’s an inevitable consequence.” Furthermore, in Mr. Cuttler’s experience, federal grant funds

24 have been crucial to care improvement projects, such as a project funded by a grant from the

25 federal Agency for Healthcare Research and Quality that reduced fall injuries in his hospital.

26

4 Mr. Cuttler and the other individuals named here were interviewed by attorneys about

27

their experiences and work. They have given amici permission to tell their stories, and records of their interviews and statements are on file with undersigned counsel.

28
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1

Mr. Cuttler has already seen the impact of an increasingly anti-immigrant climate. Students

2 from a local vocational high school who intern at his hospital have said that they have been

3 harassed and told to “return to Mexico.” And Immigration and Customs Enforcement recently

4 visited a daycare center two blocks from the hospital looking for someone. Mr. Cuttler believes

5 these actions create fear among the patient population.

6

Dr. Joe, a second-year, internal-medicine resident at Valley Medical Center, is similarly

7 concerned about serious consequences stemming from cuts in publicly funded healthcare services.5

8 He, too, has experience with tuberculosis, having seen a patient in his primary care service who

9 had not received any medical care for many years and who complained of a cough. Dr. Joe ordered

10 an x-ray and learned that the patient had already lost half of one lung to tuberculosis. Without the

11 County’s medical services, Dr. Joe’s patient would have not only risked further harm to himself but

12 also continued to expose thousands of people to that dangerous disease.

13

Dr. Joe is particularly aware of the need for the culturally sensitive medical services that the

14 County provides, which are essential to achieving trust among traditionally underserved

15 populations. He remembers vividly a patient he saw last year who had been the victim of human

16 trafficking and who came to him during her dialysis treatments. Using the network of services

17 available at Valley Medical Center, Dr. Joe worked with a team of social workers, nurses,

18 clinicians, and other staff to earn the patient’s trust and learn her full story. The information

19 elicited turned out to be crucial to the patient’s proper diagnosis, treatment, and follow-up.

20

Given that experience and others, Dr. Joe believes it is critical that underserved populations

21 who may have a distrust of the medical system have a safe place where their medical needs can be

22 addressed. “I know how scary it is for people to trust a foreign and complex medical system. I

23 have family members who were sick and I know how much it meant to them to have a doctor . . .

24 who they really believed wanted to help them. I want to be that compassionate physician . . . .”

25

26

5 Dr. Joe asked that his last name not be printed in this brief. He has undergraduate and medical school degrees from the University of California, Davis, and he chose to do his residency

27

at Santa Clara’s County hospital, Valley Medical Center, because he believes “passionately in the importance of serving vulnerable populations[.]” Dr. Joe is a member of SEIU’s Committee of

28 Interns and Residents.
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1

B. Impact on Public-Health Workers

2

Public employees are also worried about the effect the Executive Order will have on their

3 public-health work.

4

Pamela Ortiz, a 54-year-old mother of three and licensed vocational nurse, has provided

5 safety-net health services for the county health system since 1997, including sixteen years working

6 at a county methadone clinic. She is concerned that when services are cut because of President

7 Trump’s Executive Order, she will not be able to conduct visits to provide testing, vaccination, and

8 education to patients in residential substance abuse treatment programs. She fears patients will

9 stop seeking testing and services as a result, thereby weakening public health for the community as

10 a whole.

11

Ms. Ortiz believes her patients will not be able to afford private drug-treatment services and

12 will wait longer for help, leading to increased hospitalizations and costs. Fear of rising costs is

13 already a reality: One patient was recently misinformed that he had to pay hundreds of dollars for

14 x-rays (though they were covered by the county); the patient left the program two days later. Ms.

15 Ortiz worries that this will happen more often when services are cut and patients do not have a

16 health care worker, like herself, whom they trust to provide services in a non-judgmental way. The

17 rise in overdoses the country is already experiencing worries her, and when funding is cut, she

18 predicts the situation will become much worse.

19

Ms. Ortiz viscerally understands the importance of a healthcare safety net. She was born at

20 the county hospital, Valley Medical Center, and raised by her single mother in San Jose with the

21 assistance of Aid to Families with Dependent Children (AFDC) benefits. Unfortunately, her

22 mother died of congestive heart failure because of pneumonia in 1990, at the age of 54, because

23 she lacked health insurance. Ms. Ortiz herself raised and sent two daughters to college with her

24 salary, and hopes to do the same for her 15-year-old son. But because of the high cost of housing

25 in San Jose (which has already forced her to live an hour and a half away from her job), she fears

26 that if she is let go because of funding cuts she could face homelessness—and will face age

27 discrimination in any search for a new job. For all these reasons Ms. Ortiz believes in county

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1 services, in the importance of preventive healthcare, and in reaching underserved populations.

2 What makes the difference, she says, is “having the funding to treat, talk, test, and educate people

3 and let them know they matter to us no matter where they come from.”

4

Marilyn Mara is a 51-year-old nurse employed by Santa Clara County’s Department of

5 Public Health who emigrated from the Philippines at age 13 and who has worked for the County

6 for eighteen years providing essential health services. She is concerned about the effects the

7 Executive Order will have on the client population she serves, who are among society’s most

8 vulnerable: “We work with high-risk populations including infants who can be medically fragile

9 and premature, mothers with postpartum depression, pregnant and parenting teens, neglected and

10 abused children, children with high levels of lead, obese children at risk for diabetes, patients with

11 tuberculosis or other communicable diseases, adults and the elderly with chronic medical

12 conditions, patients with history of domestic violence and substance-use, and others.” She worries

13 that when services are cut, patients will rely more on emergency services and drive up costs; she

14 believes cuts in funding “will be felt for years and maybe decades” in terms of public health.

15

In Ms. Mara’s experience, continuity of care is crucial, and trust plays an important role in

16 achieving that continuity. If patients do not trust their providers, they will skip “regular well-child

17 check-ups and immunizations, follow up less frequently with primary providers, and their medical

18 conditions will worsen.” And Ms. Mara worries that the anti-immigrant animus of the Executive

19 Order will have that effect: She believes fear of deportations or raids will lead members of

20 immigrant communities to stay home and avoid seeking services.

21

C. Impact on Social Services

22

Public employees who provide other social services worry about the Executive Order’s

23 effects as well.

24

Claudia Nicole Arevalo, a 51-year-old member of SEIU Local 2015, has worked for twenty

25 years as a caregiver for the In-Home Supportive Services program in San Francisco. She currently

26 provides home care for three different patients, two of whom have no family to help them. Ms.

27 Arevalo cares for her patients ten hours per day Monday to Friday and for four hours on Saturday.

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1 She assists them by doing their grocery shopping, cooking food, housekeeping, administering

2 medication, accompanying them to medical appointments, and keeping them company. She

3 describes herself as “a nurse, housekeeper, psychologist, and chef, all in one,” and she believes

4 when public funding is cut, her clients will most likely get sicker and require more hospitalizations.

5

The Executive Order also worries Ms. Arevalo personally because she lives with her

6 daughter and granddaughter and is afraid that when program funding is cut, she may not be able to

7 support them. Ms. Arevalo emigrated from El Salvador in 1992 and has built a life here, like other

8 hard-working immigrants. If she experiences pay cuts or loses her job, she will “lose everything

9 I’ve built since I got here. I’ve bought a house and I’m paying for it every month. How would I

10 eat? It would be the worst thing to happen to me.” Ms. Arevalo also sees “a lot of fear already in

11 the immigrant communities. People are already not shopping or going out; they’re also getting sick

12 and dying and preparing to go back to the countries of their births. The whole United States will be

13 hit hard.”

14

Julie Meyers is a 62-year-old member of SEIU Local 1021 who works as a child welfare

15 supervisor for San Francisco’s Human Services Agency. Ms. Meyers is on the front lines of

16 ensuring that children are not neglected or abused and that families have the resources they need to

17 stay united. She oversees a team of seven social workers who on a daily basis respond to referrals

18 of potential child abuse with phone calls or home visits to determine risk. She works closely with

19 the courts to ensure that families receive services they need and that children are safe. Ms. Meyers

20 has been doing this life-saving work for twenty-seven years.

21

Ms. Meyers is concerned that when federal funding is cut, child-protective services will be

22 cut back or eliminated, and San Francisco’s neediest children will be made even more vulnerable.

23 She says immigrant children are already suffering the most: “A lot of them are unaccompanied.

24 So they might be here by themselves, not speaking the language, not knowing who to trust, no

25 money, no way to support themselves, so they’re the perfect target for abuse and exploitation.”

26 She fears that without the services the agency provides to poor city residents, many more will

27

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1 become homeless or starve. She believes the negative effects would be felt widely: hungry

2 children will do poorly in school, and the sick will worsen.

3

Lorena Briones is a social worker for Santa Clara County who has been employed by the

4 County and has been a member of SEIU Local 521 for twenty-one years. She evaluates and

5 manages the service needs of a range of clients who are unable to remain in their home without

6 additional care. Ms. Briones’s caseload is anywhere between 276 and 340 clients, and her recent

7 clients have included an individual diagnosed with ALS who was incapable of any form of self-

8 care; a 95-year-old woman who lived alone; a quadriplegic young person; a severely autistic young

9 man; and a little girl with paranoid schizophrenia. In all cases, Ms. Briones assesses the needs not

10 only of the disabled or elderly individual but also of the family members who care for that

11 individual, in order to determine the best way to help the family as a whole.

12

Ms. Briones does not know what will happen to the vulnerable populations she serves when

13 funding is cut in Santa Clara County: “There are more than 21,000 clients with severe, life-

14 threatening problems in Santa Clara County. Without the help that we arrange for them, I don’t

15 know how they would survive.” Ms. Briones is also the sole support for her 14-year-old daughter

16 and 10-year-old son and worries that when the County is defunded, she will not earn enough to

17 care for her children and ensure that they have health insurance. But Lorena remains committed to

18 the County’s goal of helping those who cannot help themselves, and her work with people who

19 have suffered so much helps her “remember every day when I leave my home how blessed I am.”

20

CONCLUSION

21

President Trump’s unconstitutional and punitive Executive Order threatens a wide range of

22 critical programs that have nothing to do with immigration. And the Order is causing irreparable

23 harm to jurisdictions like San Francisco and Santa Clara and will continue to cause irreparable

24

25

26

27

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1 harm to communities and the public employees who serve them. Accordingly, amici urge the

2 Court to enter the requested preliminary injunction.

3

4 Dated: March 22, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

/s/ Claire Prestel Claire Prestel
NICOLE G. BERNER CLAIRE PRESTEL DEBORAH SMITH LEO GERTNER SERVICE EMPLOYEES INTERNATIONAL UNION
Attorneys for Proposed Amici Curiae Service Employees International Union, UNITE HERE Local 19, and Working Partnerships USA
WILLIAM A. SOKOL WEINBERG, ROGER & ROSENFELD
Attorneys for Proposed Amicus Curiae South Bay AFL-CIO Labor Council
ANDREW H. BAKER BEESON TAYER & BODINE
Attorneys for Proposed Amicus Curiae American Federation of State County & Municipal Employees (AFSCME) Council 57
JONATHAN H. SIEGEL LATIKA MALKANI SIEGEL LEWITTER MALKANI
Attorneys for Proposed Amicus Curiae United Food and Commercial Workers (UFCW), Local 5

22

23

24

25

26

27

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1 NICOLE G. BERNER (SBN 187415) CLAIRE PRESTEL (SBN 235649)
2 DEBORAH SMITH LEO GERTNER
3 SERVICE EMPLOYEES INTERNATIONAL UNION
4 1800 Massachusetts Avenue, NW Washington, DC 20036
5 Telephone: (202) 730-7468 Facsimile: (202) 429-5565
6 E-mail: claire.prestel@seiu.org

ANDREW H. BAKER BEESON TAYER & BODINE 483 Ninth Street, Ste. 200 Oakland, CA 94607 Telephone: (510) 625-9700 Facsimile: (510) 625-8275 Email: ABaker@beesontayer.com
Attorneys for Proposed Amicus Curiae American Federation of State County & Municipal Employees (AFSCME) Council 57

7 Attorneys for Proposed Amici Curiae Service

JONATHAN H. SIEGEL

Employees International Union, Working

LATIKA MALKANI

8 Partnerships USA, and UNITE HERE Local 19 SIEGEL LEWITTER MALKANI

1939 Harrison Street, Ste. 307

9 WILLIAM A. SOKOL (SBN 72740)

Oakland, CA 94612

WEINBERG, ROGER & ROSENFELD

Telephone: (510) 452-5000

10 1001 Marina Village Parkway, Ste. 200

Facsimile: (510) 452-5004

Alameda, CA 94501

Email: jsiegel@sl-employmentlaw.com

11 Telephone: (510) 337-1001

Email: lmalkani@sl-employmentlaw.com

Facsimile: (510) 337-1023

12 Email: wsokol@unioncounsel.net

Attorneys for Proposed Amicus Curiae United

Food and Commercial Workers (UFCW),

13 Attorneys for Proposed Amicus Curiae

Local 5

South Bay AFL-CIO Labor Council

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

17 CITY AND COUNTY OF SAN FRANCISCO,

CASE NO. 3:17-cv-00485-WHO

18

Plaintiff,

19

v.

20 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,
21 JOHN F. KELLY, Secretary of United States Department of Homeland Security, JEFFERSON
22 SESSIONS, Attorney General of the United States, DOES 1-100,
23
Defendants. 24

25

[PROPOSED] ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

Date: Time: Dep’t: Judge:

April 12, 2017 2:00 pm Courtroom 2 Hon. William H. Orrick

Date Filed: March 22, 2017

Trial Date: Not yet set

26

27

28
[PROPOSED] ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 33-2 Filed 03/22/17 Page 2 of 2

1

[PROPOSED] ORDER

2

On March 22, 2017, the Service Employees International Union, joined by others, filed an

3 Administrative Motion for Leave to File Brief Amici Curiae. Having considered the papers and

4 pleadings on file, the Court GRANTS the Administrative Motion for Leave to File Brief Amici

5 Curiae and ORDERS that the brief submitted by the Service Employees International Union and

6 co-amici be filed.

7

8

IT IS SO ORDERED.

9 10 Dated: 11 12

, 2017

HONORABLE WILLIAM H. ORRICK JUDGE, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
[PROPOSED] ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE Case No. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 34 Filed 03/22/17 Page 1 of 2

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
CITY AND COUNTY OF SAN

16 FRANCISCO,

Plaintiff,

17

v.

18 DONALD J. TRUMP, et al.,

No. 3:17-cv-00485-WHO
STIPULATION AND [PROPOSED] ORDER

19
Defendants.
20

21
WHEREAS, the United States Attorney’s office was served with the complaint in this
22
action on February 6, 2017, so that defendants’ response to the complaint is currently due April 7,
23
2017;
24
WHEREAS, the plaintiff has filed a motion for preliminary injunction, which is currently
25
scheduled for oral argument on April 12, 2017;
26
AND WHEREAS, the defendants require additional time to prepare their response to the
27
complaint, particularly in light of the timing of the argument on plaintiff’s motion;
28

Stipulation and [Proposed] Order No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 34 Filed 03/22/17 Page 2 of 2

1

NOW THEREFORE, the parties hereby stipulate that defendants’ response to the

2 plaintiff’s complaint shall be filed no later than April 28, 2017, and respectfully request that the

3 Court so order.

4

Respectfully submitted,

5

DENNIS J. HERRERA (CA Bar #139669)

CHAD A. READLER

City Attorney
6

Acting Assistant Attorney General

JESSE C. SMITH (CA Bar #122517)

7

Chief Assistant City Attorney

8

RONALD P. FLYNN (CA Bar #184186)

9

Chief Deputy City Attorney

BRIAN STRETCH United States Attorney
JOHN R. TYLER Assistant Director

10

YVONNE R. MERÉ (CA Bar #173594)

Chief of Complex and Affirmative Litigation /s/ W. Scott Simpson

11

/s/ Mollie M. Lee

W. SCOTT SIMPSON (Va. Bar #27487)

12

Senior Trial Counsel

CHRISTINE VAN AKEN (CA Bar #241755)

13

TARA M. STEELEY (CA Bar #231775)

MOLLIE M. LEE (CA Bar #251404)

Attorneys, Department of Justice

14

SARA J. EISENBERG (CA Bar #269303)

Civil Division, Room 7210

MATTHEW S. LEE (CA Bar #295247)

Federal Programs Branch

15

NEHA GUPTA (CA Bar #308864)

Post Office Box 883

Deputy City Attorneys

Washington, D.C. 20044

16

City Hall, Room 234

17

1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

Telephone: Facsimile: E-mail:

(202) 514-3495 (202) 616-8470 scott.simpson@usdoj.gov

18

Telephone: (415) 554-4748

Facsimile: (415) 554-4715

COUNSEL FOR DEFENDANTS

19 E-Mail:

brittany.feitelberg@sfgov.org DONALD J. TRUMP, President of the

20

COUNSEL FOR PLAINTIFF

CITY AND COUNTY OF SAN

21

FRANCISCO

United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the

22

United States

23

24 PURSUANT TO STIPULATION, IT IS SO ORDERED.

25
Dated: __________________, 2017
26
27
28
Stipulation and [Proposed] Order No. 5:17-cv-00485-WHO

____________________________ WILLIAM H. ORRICK United States District Judge
2

 
 Case 3:17-cv-00485-WHO Document 36 Filed 03/22/17 Page 1 of 7

1 Sonya D. Winner (Bar No. 200348) swinner@cov.com
2 COVINGTON & BURLING LLP One Front Street, 35th Floor
3 San Francisco, California 94111-5356 Telephone: (415) 591-6000
4 Facsimile: (415) 591-6091

5 Attorneys for Amici Curiae Professors of Constitutional Law, Administrative Law, and Immigration Law
6

7

UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10 CITY AND COUNTY OF SAN FRANCISCO,

11

Plaintiffs,

12 v.

13

DONALD J. TRUMP, President of the United 14 States, UNITED STATES OF AMERICA,

15

JOHN F. KELLY, Secretary of United States Department of Homeland Security, JEFFERSON B.

16 SESSIONS, Attorney General of the United States,

Civil Case No. 3:17-cv-00485-WHO

17

Defendants.

18 19 COUNTY OF SANTA CLARA,

Civil Case No. 3:17-cv-00574-WHO

20

Plaintiff,

21

v.

22 DONALD J. TRUMP, President of the United

23 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

24 Department of Homeland Security, JEFFERSON B.

SESSIONS, in his official capacity as Attorney 25 General of the United States, JOHN MICHAEL

26

“MICK” MULVANEY, in his official capacity as Director of the Office of Management and Budget,

27 and DOES 1-50,

ADMINISTRATIVE MOTION OF PROFESSORS OF CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, AND IMMIGRATION LAW FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

28

Defendants.

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

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1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE THAT Professors Erwin Chemerinsky, Seth Davis, Roxana Bacon,

3 and the other legal scholars listed below hereby move the Court for leave to file a brief amici curiae in

4 the above-captioned cases in support of plaintiffs’ motions for preliminary injunction. Defendants take

5 no position on the request; plaintiffs have consented to the filing. See Declaration of Sonya D. Winner,

6 below, at ¶¶ 2-3. A copy of the proposed amicus brief is appended as an exhibit to this motion.

7 I. 8

STANDARD FOR MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE. District courts have broad discretion to permit third parties to participate in an action as amici

9 curiae, and generally courts have “exercised great liberality” in allowing amicus briefs. Woodfin Suite 10 Hotels, LLC v. City of Emeryville, 2007 WL 81911, at *3 (N.D. Cal. Jan. 9, 2007). District courts

11 frequently accept amicus briefs from non-parties when the legal issues in a case “have potential

12 ramifications beyond the parties directly involved” or if the amici have “unique information or

13 perspective that can help the court.” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp.

14 2d 1061, 1067 (N.D. Cal. 2005) (internal quotation marks omitted). There are no strict prerequisites that

15 must be established to qualify for amicus status; an applicant must merely make a showing that its

16 “participation is useful to or otherwise desirable to the court.” Infineon Techs. N. Am. Corp. v. Mosaid 17 Techs., Inc., 2006 WL 3050849, at *3 (N.D. Cal. Oct. 23, 2006) (quoting In re Roxford Foods Litig., 790

18 F. Supp. 987, 997 (E.D. Cal. 1991)). This Court has specifically indicated a willingness to consider

19 amicus briefs in this litigation. See Order Regarding Amicus Briefs, County of Santa Clara v. Donald J.

20 Trump, et al., No. 17-cv-00574-WHO (N.D. Cal. Feb. 24, 2017), Dkt. No. 40; Order Regarding Amicus

21 Briefs, City and County of San Francisco v. Donald J. Trump, et al., No. 17-cv-00485-WHO (N.D. Cal.

22 Mar. 21, 2017), Dkt. No. 31.

23 II. STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE.

24

The amici listed below, all of whom are independent of the parties to this action, are law

25 professors and scholars who have a professional interest in the issues presented on this case. Amici have

26 researched, studied, and taught in the areas of constitutional law, administrative law, and immigration

27 law and have specific expertise in the issues of separation of powers and executive power addressed in

28 this amicus curiae brief. Several of these amici have recently co-authored a letter to the President

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS

1

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1 urging him to rescind Section 9(a) of Executive Order 13768 for many of the same reasons addressed in

2 this brief. Their expertise in the constitutional issues presented will assist the Court in understanding the

3 jurisprudence and history relevant to this case.

4

Amici are:

5

• Roxana Bacon, Visiting Professor, University of Miami School of Law,1 and former

6

Chief Counsel to the United States Citizenship & Immigration Services;

7

• Alan Brownstein; Professor of Law, Boochever and Bird Chair for the Study and

8

Teaching of Freedom and Equality; University of California at Davis School of Law;

9

• Erwin Chemerinsky, Dean of the University of California, Irvine School of Law;

10

• David S. Cohen, Professor of Law, Thomas R. Kline School of Law, Drexel University;

11

• Seth Davis, Assistant Professor of Law, University of California, Irvine School of Law;

12

• Marc-Tizoc González, Associate Professor of Law, St. Thomas University School of

13

Law;

14

• Dina Haynes, Professor of Law, New England Law;

15

• Kari E. Hong, Assistant Professor, Boston College Law School;

16

• Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago;

17

• Annie Lai, Assistant Clinical Professor of Law, University of California, Irvine School of

18

Law;

19

• Stephen Lee, Professor of Law, University of California, Irvine School of Law;

20

• Gerald P. López; Professor of Law, University of California, Los Angeles School of Law;

21

• Elizabeth McCormick, Associate Clinical Professor of Law, University of Tulsa College

22

of Law;

23

• M. Isabel Medina, Ferris Family Distinguished Professor of Law, Loyola University of

24

New Orleans;

25

26 1 All institutional affiliations are for identification purposes only and do not signify institutional
27 endorsement of this brief.

28

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS

2

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1

• Margaret E. Montoya, Emeritus Professor of Law, University of New Mexico;

2

• Elora Mukherjee, Associate Clinical Professor of Law, Columbia Law School, Director

3

of Columbia Law School’s Immigrants’ Rights Clinic;

4

• Michelle Oberman, Katharine and George Alexander Professor of Law, Santa Clara

5

University School of Law;

6

• Keramet Reiter, Assistant Professor of Criminology, University of California Irvine

7

School of Social Ecology;

8

• Carrie Rosenbaum, Adjunct Professor, Golden Gate University School of Law;

9

• Ozan Varol, Associate Professor of Law, Lewis & Clark Law School;

10

• Leti Volpp, Robert D. and Leslie Kay Raven Professor of Law in Access to Justice,

11

University of California, Berkeley School of Law; and

12

• Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law, University of

13

North Carolina School of Law.

14

Amici include professors who have taught and published extensively in the area of constitutional

15 law. For example, Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law at the

16 University of California, Irvine School of Law, with a joint appointment in Political Science. His areas

17 of expertise include constitutional law, federal practice, and civil rights and civil liberties. He is the

18 author of seven books and nearly 200 articles in major law reviews, and his academic work has been

19 frequently cited by courts. Another of the amici, Professor Aziz Huq, is the Frank and Bernice J.

20 Greenberg Professor of Law at the University of Chicago. His research and teaching interests include

21 constitutional law, criminal procedure, federal courts and legislation, and his scholarship focuses on the

22 interaction of constitutional design with individual rights and liberties. Professor Huq has published

23 extensively about executive power and separation of powers, including the following publications:

24 Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press 2007), The Cycles of

25 Separation-of-Powers Jurisprudence, 126 Yale L. J. (forthcoming 2017), and Libertarian Separation of

26 Powers, 8 N.Y.U. J. L. & Liberty 1006 (2014).

27

Amici also have experience in administrative law. For example, Professor Seth Davis teaches

28 Administrative Law at the University of California, Irvine School of Law, and his scholarship focuses

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS

3

CURIAE BRIEF

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1 on federal litigation and federal administrative law, particularly as it relates to the creation of rights of

2 action or the allocation of lawmaking authority. His work has appeared or is forthcoming in leading law

3 reviews, including the Columbia Law Review, the California Law Review, and the Vanderbilt Law

4 Review.

5

Amici also include doctrinal and clinical professors with a depth of immigration law experience.

6 For example, Roxana Bacon has practiced and taught immigration law for over 40 years and has served

7 as General Counsel to the American Immigration Lawyers Association, Chief Counsel to United States

8 Citizenship & Immigration Services, and represented foreign nationals and U.S. companies in every

9 aspect of immigration law. She has submitted various amicus briefs to the United States Supreme Court,

10 including in United States v. Texas, 579 U.S. ____ (2016), which involved the constitutionality of the

11 Deferred Action for Parents of Americans and Lawful Permanent Residents policy. Another of the

12 amici, Elora Mukherjee, is an Associate Clinical Professor of Law at Columbia Law School and

13 Director of the Law School’s Immigrants’ Rights Clinic, where she has provided legal representation to

14 immigrant children and adults.

15 III. AMICI CURIAE’S EXPERTISE WILL BENEFIT THIS COURT

16

In this case, the Court has indicated a willingness to consider amicus briefs. See Order

17 Regarding Amicus Briefs, County of Santa Clara v. Donald J. Trump, et al., No. 17-cv-00574-WHO

18 (N.D. Cal. Feb. 24, 2017), Dkt. No. 40; Order Regarding Amicus Briefs, City and County of San

19 Francisco v. Donald J. Trump, et al., No. 17-cv-00485-WHO (N.D. Cal. Mar. 21, 2017), Dkt. No. 31.

20

On the basis of their expertise, scholarship, and experience in the fields of administrative,

21 constitutional, and immigration law, amici meet the broad discretionary standard for filing an amicus

22 curiae brief. See Woodfin Suite Hotels, 2007 WL 81911, at *3. Amici have special expertise in 23 separation of powers and spending clause issues that will be of assistance to the Court. See Roxford, 790

24 F. Supp. at 997. Moreover, the “potential ramifications” of this case go far beyond the parties, as the

25 outcome may determine the fate of federal funding, not only for the City and County of San Francisco

26 and the County of Santa Clara, but also for many other “sanctuary jurisdictions” around the country.

27 See NGV Gaming, 355 F. Supp. 2d at 1067.

28

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS

4

CURIAE BRIEF

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1

Accordingly, amici respectfully offer their analysis of these issues to assist the Court in its

2 deliberations.

3 IV. CONCLUSION

4

For the foregoing reasons, the above-listed amici respectfully request this Court’s leave to submit

5 the attached brief amici curiae.

6

7 DATED: March 22, 2017 8 9 10 11 12 13 14 15

Respectfully submitted,
COVINGTON & BURLING LLP
By: /s/ Sonya D. Winner Sonya D. Winner (Bar No. 200348) swinner@cov.com Jun Li∗ junli@cov.com COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091

16

Attorneys for Amici Curiae Professors of

Constitutional Law, Administrative Law,

17

and Immigration Law

18

19

20

21

22

23

24 ∗ Admitted to practice in the United States District Court for the Southern District of New York. See

25

Order Regarding Amicus Briefs, County of Santa Clara v. Donald J. Trump, et al., No. 17-cv-00574WHO (N.D. Cal. Feb. 24, 2017), Dkt. No. 40 (waiving the pro hac vice requirements of Northern

26 District of California Local Rule 11-3 for attorneys admitted to practice and in good standing in any United States District Court); Order Regarding Amicus Briefs, City and County of San Francisco v.

27 Donald J. Trump, et al., No. 17-cv-00485-WHO (N.D. Cal. Mar. 21, 2017), Dkt. No. 31 (same).

28

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS

5

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1

DECLARATION OF SONYA D. WINNER

2

I, Sonya D. Winner, declare as follows:

3

1. I am an attorney in the law firm of Covington & Burling LLP, attorneys for Amici

4 Curiae Professors of Constitutional Law, Administrative Law, and Immigration Law in this action. I am

5 licensed to practice law in the State of California. The matters set forth herein are true and correct of my

6 own personal knowledge and information provided to me. If called as a witness, I could and would

7 testify competently thereto.

8

2. On March 21, 2017, my colleague, Jun Li, spoke to W. Scott Simpson, counsel

9 for defendants, on the phone and requested a stipulation for leave to file this amicus brief. Mr. Simpson

10 replied that “defendants take no position” on the motion to file this amicus brief.

11

3. Tara M. Steeley, Deputy City Attorney for the City and County of San Francisco,

12 and Julia Spiegel, counsel for the County of Santa Clara, have informed me that they consent to the

13 filing of this amicus brief.

14

I declare under penalty of perjury under the laws of the State of California and the United

15 States of America that the foregoing is true and correct.

16

Executed on March 22, 2017, in San Francisco, California.

17

18

/s/ Sonya D. Winner

19

Sonya D. Winner

20

21

22

23

24

25

26

27

28

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS

6

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EXHIBIT 1

Case 3:17-cv-00485-WHO Document 36-1 Filed 03/22/17 Page 2 of 17

1 Sonya D. Winner (Bar No. 200348) swinner@cov.com
2 COVINGTON & BURLING LLP One Front Street, 35th Floor
3 San Francisco, California 94111-5356 Telephone: (415) 591-6000
4 Facsimile: (415) 591-6091

5 Attorneys for Amici Curiae Professors of Constitutional Law, Administrative Law, and Immigration Law
6

7

UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10 CITY AND COUNTY OF SAN FRANCISCO,

11

Plaintiffs,

12 v.

13

DONALD J. TRUMP, President of the United 14 States, UNITED STATES OF AMERICA,

15

JOHN F. KELLY, Secretary of United States Department of Homeland Security, JEFFERSON B.

16 SESSIONS, Attorney General of the United States,

Civil Case No. 3:17-cv-00485-WHO

17

Defendants.

18 19 COUNTY OF SANTA CLARA,

Civil Case No. 3:17-cv-00574-WHO

20

Plaintiff,

21

v.

22 DONALD J. TRUMP, President of the United

23 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

24 Department of Homeland Security, JEFFERSON B.

SESSIONS, in his official capacity as Attorney 25 General of the United States, JOHN MICHAEL

26

“MICK” MULVANEY, in his official capacity as Director of the Office of Management and Budget,

27 and DOES 1-50,

AMICI CURIAE BRIEF OF PROFESSORS OF CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, AND IMMIGRATION LAW IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

28

Defendants.

BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS

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1

TABLE OF CONTENTS

2

3 INTEREST OF AMICI CURIAE ................................................................................................... 1

4 INTRODUCTION .......................................................................................................................... 1

5 I. The Doctrine of Separation of Powers Is a Fundamental Principle Underlying the United

6

States Constitution. ............................................................................................................. 2

7 II. The Executive Order Reflects an Impermissible Encroachment by the Executive Branch

8

on the Congressional Spending Power. .............................................................................. 4

9

A. The Constitution Grants the Spending Power to Congress, Not the President. ...... 5

10

B. There Is No Congressional Authorization for the Executive Order. ...................... 6

11

C. Even if Congress Had Delegated Authority to the President to Take the Action

12

Reflected in Section 9 of the Executive Order, the President May Not Unilaterally

13

and Retroactively Repeal Congressional Appropriations. ...................................... 7

14 III. The Executive Order Purports to Exercise Spending Power That Even Congress Lacks. 10

15 CONCLUSION............................................................................................................................. 12

16

17

18

19

20

21

22

23

24 25 26 27 28

BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Boumediene v. Bush,

5

553 U.S. 723 (2008)...............................................................................................................................2

6 Bowsher v. Synar,

478 U.S. 714 (1986)...............................................................................................................................4

7

Clinton v. City of New York,

8

524 U.S. 417 (1998).......................................................................................................................4, 8, 9

9 Davis v. Monroe County Board of Education,

10

526 U.S. 629 (1999).............................................................................................................................10

11 Food and Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)...............................................................................................................................7

12

I.N.S. v. Chadha,

13

462 U.S. 919 (1983)...................................................................................................................2, 3, 4, 6

14 In re Aiken County,

15

725 F.3d 255 (D.C. Cir. 2013) ...............................................................................................................8

16 Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991)...........................................................................................................................2, 4

17 Mistretta v. United States,

18

488 U.S. 361 (1989)...........................................................................................................................2, 4

19 National Federation of Independent Business v. Sebelius,

20

132 S. Ct. 2566 (2012) ...................................................................................................................11, 12

21 New York v. United States, 505 U.S. 144 (1992).............................................................................................................................11

22 Pennhurst State School & Hosp. v. Halderman,

23

451 U.S. 1 (1981).................................................................................................................................11

24 South Dakota v. Dole, 483 U.S. 203 (1987).................................................................................................................10, 11, 12
25

26

Train v. City of New York, 420 U.S. 35 (1975).................................................................................................................................8

27 Youngstown Sheet & Tube Co. v. Sawyer,

28

343 U.S. 579 (1952)...........................................................................................................................3, 7

BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS

ii

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1 Statutes

2 2 U.S.C.A. § 683 ........................................................................................................................................10

3 8 U.S.C. § 1373............................................................................................................................................6

4 Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, Title

5

X, 88 Stat. 332 .......................................................................................................................................9

6 Other Authorities

7 28 C.F.R. pt. 18 ............................................................................................................................................6

8 44 C.F.R. § 206.440 .....................................................................................................................................6

9 Edward Hirsch Levi, Some Aspects of Separation of Powers, 76 Colum. L. Rev. 371

10

(1976) .....................................................................................................................................................3

11 Executive Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) ...................................................... passim

12 Executive Impoundment of Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 279 (1971) ..................................8

13

Laurence H. Tribe, American Constitutional Law 140 (3d ed. 2000) .........................................................4 14

Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist

15

Approach, 81 Cornell L. Rev. 393 (1996) .............................................................................................2

16 U.S. Const. art. I.......................................................................................................................................3, 5

17 U.S. Const. art. II .........................................................................................................................................3 18
U.S. Const. art. III ........................................................................................................................................3 19

20

21

22

23

24

25

26

27

28

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1

INTEREST OF AMICI CURIAE

2

Amici curiae are 22 leading legal scholars, including experts in constitutional law, administrative

3 law, and immigration law. Amici submit this brief to address some of the important constitutional law

4 issues raised in this litigation, with a focus on the fundamental principles of separation of powers that

5 are so central to the United States Constitution and our democratic system of government, as well as the

6 related boundaries and limitations of the constitutional spending power. More detail concerning these

7 amici is set out in the accompanying Administrative Motion of Professors of Constitutional Law,

8 Administrative Law, and Immigration Law for Leave to File an Amicus Curiae Brief.

9

INTRODUCTION

10

In these cases, the Court must determine, inter alia, whether Section 9 of Executive Order No.

11 13768, entitled “Enhancing Public Safety in the Interior of the United States,” Exec. Order No. 13,768,

12 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”), violates the United States Constitution and

13 its underlying principles of federalism and separation of powers. Section 9 of the Executive Order

14 directs federal officials to “ensure” that any “sanctuary” jurisdictions that willfully refuse to comply

15 with certain federal laws or other requirements relating to immigration “are not eligible to receive

16 Federal grants,” except as “deemed necessary for law enforcement purposes.” Id. In doing so, the

17 President has both usurped Congress’s spending power in a clear overreach of his executive power

18 under Article I of the Constitution and exceeded the constitutional limits on the spending power itself.

19 Amici file this brief to assist the Court in understanding the history of the important separation of powers 20 and spending clause issues at the forefront of these cases.1

21

The principle of separation of powers is the bedrock of our constitutional system of government,

22 with its three branches of government: legislative, executive and judicial. The Constitution grants each

23 branch specific enumerated powers and imposes an intricate system of checks and balances to ensure

24 that no one branch oversteps its bounds. The Supreme Court has repeatedly echoed the constitutional

25
26 1 Amici are aware that another group of legal scholars is submitting an amicus brief in these cases, addressing issues of federalism and anti-coercion that are beyond the scope of this brief. Amici here
27 urge the Court also to consider that other brief.

28

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1 doctrine that separation of powers is essential to protect and preserve the liberty and security of the

2 governed. See e.g., Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc.

3 (“MWAA”), 501 U.S. 252, 272 (1991); Mistretta v. United States, 488 U.S. 361, 380 (1989).

4

Through the promulgation of Section 9 of the Executive Order, which conditions federal grants

5 on compliance with legal requirements selected by the President unilaterally, the President has usurped

6 the spending power, which the Constitution explicitly grants to Congress. Section 9 of the Executive

7 Order has no statutory authorization from Congress and attempts to exercise the spending power in a 8 manner that far exceeds the limits of even Congress’s power of the purse.2

9 I. The Doctrine of Separation of Powers Is a Fundamental Principle Underlying the United States Constitution.
10
The Framers of the Constitution viewed separation of powers as the antithesis to the rule of the 11
British monarchy. They had “lived under a form of government that permitted arbitrary governmental 12
acts to go unchecked,” which instilled in them an inherent distrust of concentrated governmental power. 13
See I.N.S. v. Chadha, 462 U.S. 919, 959 (1983); see also Boumediene v. Bush, 553 U.S. 723, 742 (2008). 14
Under British rule, “the colonies suffered the abuses of unchecked executive power that were attributed, 15
at least popularly, to a hereditary monarchy.” See Chadha, 462 U.S. at 960 (Powell, J. concurring). The 16
Declaration of Independence condemned the King’s “establish[ment] of ‘an absolute Tyranny over these 17
States’” and blatant disregard of separation of powers. See Robert J. Pushaw, Jr., Justiciability and 18
Separation of Powers: A Neo-Federalist Approach, 81 Cornell L. Rev. 393, 407 n.68 (1996) (citing The 19
Declaration of Independence ¶ 2). Thus, at the close of American Revolution, the Framers adopted the 20

21

22 2 In a recent filing in these cases, defendants have suggested that the plaintiffs cannot show irreparable harm because the funding provision of Section 9 is to be implemented only “to the extent consistent with

23 law.” See Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj., Dkt. No. 46, at 10-11 (quoting Executive Order

Section 9(a)). If this is intended to suggest that Section 9 should be read as not purporting to impose any 24 funding restrictions that are not already explicitly and unambiguously established by federal statute, it

25

may be difficult to harmonize such an interpretation with the remainder of Section 9, the Executive Order more generally, and the Administration’s public statements about it. In any event, however, this

26 amicus brief does not take a position on the appropriate interpretation of the Order and instead assumes that Section 9 imposes new limits on disbursement of appropriated federal funds that are not already

27 explicitly embodied in enacted statutes.

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1 doctrine of separation of powers in order “to preclude the exercise of arbitrary power.” Youngstown

2 Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952) (Douglas, J., concurring) (citing Myers v. United

3 States, 272 U.S. 52, 293 (1926)).

4

Following the Revolution, the states sought to avoid the abuses of executive power by

5 transferring power to the state legislatures in the Articles of Confederation. However, this new

6 governmental structure also eschewed separation of powers and concentrated most governmental

7 authority in one branch. As Thomas Jefferson observed of the new legislative regimes during the

8 Confederation: “All the powers of government, legislative, executive and judiciary, result to the

9 legislative body. The concentrating of these in the same hands, is precisely the definition of despotic

10 government.” The Federalist No. 48, at 148-49 (James Madison) (Roy B. Fairfield ed., 1966) (quoting

11 T. Jefferson, Notes on the State of Virginia). The Framers, borrowing from Jefferson and Montesquieu’s

12 The Spirit of the Law, realized that the executive branch was not the only threat to individual liberty, but

13 rather that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands,

14 whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be

15 pronounced the very definition of tyranny.” The Federalist No. 47, at 139 (James Madison).

16

Determined to remedy the deficiencies of the governmental structure of the Articles of

17 Confederation, the Framers deliberately distributed power among three separate branches in the

18 Constitution: Congress was given “[a]ll legislative Powers herein granted,” U.S. Const. art. I, § 1, the

19 “executive Power” was vested in the President, U.S. Const. art. II, § 1, cl. 1, and the “judicial Power of

20 the United States” was vested in the Supreme Court and the inferior courts, U.S. Const. art. III, § 1. The

21 Framers believed that only this tripartite separation could achieve the desired effect of counteracting

22 “the inevitable tendency of concentrated authority to overreach and threaten liberty.” See Edward

23 Hirsch Levi, Some Aspects of Separation of Powers, 76 Colum. L. Rev. 371, 374 (1976).

24

The doctrine of separation of powers was not just an abstract ideal championed by the Framers at

25 the close of the eighteenth century; rather, it was carefully set forth in the text of the Constitution and is

26 now woven into the fabric of American government. See Chadha, 462 U.S. at 946. Indeed, “the very

27 structure of the articles delegating and separating powers under Arts. I, II, and III exemplify the concept

28 of separation of powers.” Id. The Supreme Court has examined and enforced separation of powers in

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1 various formulations throughout the history of its jurisprudence, and has “not hesitated to invalidate

2 provisions of law which violate this principle.” MWAA, 501 U.S. at 273 (citing Morrison v. Olson, 487

3 U.S. 654, 693 (1988)); see also Chadha, 462 U.S. at 962-63 (Powell, J. concurring) (“Where one branch

4 has impaired or sought to assume a power central to another branch, the Court has not hesitated to

5 enforce the doctrine.”). Our government relies upon a “carefully crafted system of checked and

6 balanced power within each Branch” and the tripartite structure helps to “safeguard against the

7 encroachment or aggrandizement of one branch at the expense of the other.” See Mistretta, 488 U.S. at

8 381-82.

9

Although there may be situations in which there is a degree of fluidity of the responsibilities of

10 two branches, “there remain many specific instances in which the Constitution’s text and structure, fairly

11 interpreted, all but demand that powers be allocated in a particular way.” See Laurence H. Tribe,

12 American Constitutional Law 140 (3d ed. 2000). The Supreme Court has applied separation of powers

13 principles and strictly construed constitutional language to address budgeting and spending issues in

14 particular. See Clinton v. City of New York, 524 U.S. 417 (1998) (finding Line Item Veto Act violated

15 Constitution’s Presentment Clause by allowing President to amend or repeal duly-enacted laws);

16 Bowsher v. Synar, 478 U.S. 714 (1986) (finding reporting provisions of Gramm-Rudman-Hollings Act

17 to violate the Constitution’s requirement that Congress play no direct role in the execution of the laws).

18 This is one of those specific instances in which the text of the Constitution governs: Article I of the

19 Constitution assigns the spending power – the ability to decide who will and will not receive

20 appropriations of federal funds – to Congress. Section 9 of the Executive Order thus violates the

21 doctrine of separation of powers commanded by the Constitution.

22 II. The Executive Order Reflects an Impermissible Encroachment by the Executive Branch on the Congressional Spending Power.
23
The Executive Order purports to draw its authority from “the Constitution and the laws of the 24
United States.” 82 Fed. Reg. at 8799. However, Article II of the Constitution does not grant the 25
President authority to identify legal requirements and policies to which he gives priority and to condition 26
receipt of federal funds on compliance with those requirements and policies, without Congressional 27
authorization of those conditions. That is an exercise of “spending power” that the Constitution assigns 28

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1 to Congress. Even assuming Congress may delegate some elements of this power to the Executive, it has

2 manifestly not done so here.

3

A. The Constitution Grants the Spending Power to Congress, Not the President.

4

Article I of the Constitution explicitly grants the power of the purse to Congress, not the

5 President: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to

6 pay the Debts and provide for the common Defense and general Welfare of the United States; but all

7 Duties, Imposts and Excises shall be uniform throughout the United States.” U.S. Const. art. I, § 8, cl. 1.

8 Furthermore, “no money shall be drawn from the Treasury, but in Consequence of Appropriations made

9 by Law.” Id., Art. I, § 9, cl. 7. Although the President plays an important role in the creation of budget

10 estimates and has the power to veto a bill passed by Congress, only Congress has the power to enact

11 appropriations laws that specify who will and will not receive distributions of federal funds.

12

The Framers purposely granted the power of the purse to Congress in order to preserve the

13 system of checks and balances: “the legislative department alone has access to the pockets of the

14 people, and has in some constitutions full discretion, and in all, a prevailing influence, over the

15 pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter.”

16 The Federalist, No. 48, at 148 (James Madison); see also The Federalist, No. 78, at 227 (Alexander

17 Hamilton) (“The legislature not only commands the purse, but prescribes the rules by which the duties

18 and rights of every citizen are to be regulated.”). Madison believed the fiscal power provided the

19 legislative branch with a strong defense against encroachments by the other two branches, the “most

20 complete and effectual weapon with which any constitution can arm the immediate representatives of

21 the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary

22 measure.” The Federalist, No. 58 (James Madison).

23

Section 9(a) of the Executive Order seeks to usurp Congress’s spending power by conditioning

24 receipt of previously appropriated federal grant funds on compliance with certain immigration measures

25 to which the President wishes to give priority. 82 Fed. Reg. at 8801. This condition derives neither

26 from the immigration laws at issue nor from the laws through which the funds have been appropriated.

27 Rather, it derives exclusively from the President’s unilateral decision to withhold the funds as a

28 punishment for failure to comply with the laws as he interprets them.

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1

This represents an impermissible encroachment on the spending power that the Constitution

2 grants to Congress and represents a fundamental breach of the separation of powers that the Founders so

3 carefully constructed. Any exercise of the powers of the legislative, executive and judicial branches

4 must be subject to the “carefully crafted restraints spelled out in the Constitution.” See Chadha, 462

5 U.S. at 959. If and to the extent Section 9 of the Executive Order has the effect of putting federal funds

6 at stake, it reflects exactly the type of abuse of power the Framers feared: the undue concentration of

7 legislative and executive power in one person. Indeed, in this case the usurpation is even broader, as the

8 President is purporting to make new laws on one subject (funding) in support of his preferred method of

9 executing an entirely different and largely unrelated set of laws. Quoting Montesquieu, Madison

10 warned, “when the legislative and executive powers are united in the same person or body . . . there can

11 be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical

12 laws to execute them in a tyrannical manner.” The Federalist No. 47, at 247 (James Madison). By

13 purporting unilaterally to impose conditions on the receipt of federal funds – and thus to determine who

14 will and will not receive such funds – Section 9 of the Executive Order breaches critical constitutional

15 limits on the President’s power.

16

B. There Is No Congressional Authorization for the Executive Order.

17

In addition to lacking constitutional authority for the kind of action embodied in Section 9 of the

18 Executive Order, the President is also unable to point to any statutory authority for this action. There is

19 no indication that Congress purported to delegate to the President, through 8 U.S.C. § 1373 (“Section

20 1373”) or any other statute, the authority to withhold funding from “sanctuary” jurisdictions. No such

21 provision appears in Section 1373 or the other immigration laws cited in the Executive Order; nor is

22 such authority provided in the appropriations and related laws associated with the funding that the 23 Executive Order threatens to withhold.3

24

25 3 Defendants have pointed to two statutory regimes that establish procedures for revoking federal grants: the Office of Justice Programs Hearing and Appeal Procedures, 28 C.F.R. pt. 18, and the Hazard
26 Mitigation Grant Program, 44 C.F.R. § 206.440. See Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 11,
No. 3:17-cv-00574-WHO, Dkt No. 46. However, those regimes are available only in very limited 27 circumstances and for grants awarded under specific statutes. Neither applies broadly to “federal

28 (continued…)

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1

Nor is there any basis upon which statutory delegation of this authority can be inferred. To the

2 contrary, in recent years there have been more than ten bills proposed in Congress to deny funding to 3 “sanctuary” jurisdictions; none of these bills has been enacted into law.4 In Food and Drug Admin. v.

4 Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000), the Supreme Court rejected the

5 FDA’s claim that it had jurisdiction over tobacco products, citing the fact that Congress had considered

6 and “squarely rejected” several bills that would have granted such authority to the agency. Thus, the

7 Court should consider that Congress has expressly considered the restriction embodied in the Executive

8 Order and chosen not to adopt it. As Justice Jackson famously said in Youngstown Sheet & Tube Co. v.

9 Sawyer, “when the President takes measures incompatible with the expressed or implied will of

10 Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers

11 minus any constitutional powers of Congress over the matter.” 343 U.S. at 637. Absent express

12 authorization or delegation from Congress, the President may not rely upon inherent executive powers to

13 unilaterally create laws – including laws that seek to undermine and even contradict appropriation

14 measures that Congress has adopted.

15

C. Even if Congress Had Delegated Authority to the President to Take the Action

Reflected in Section 9 of the Executive Order, the President May Not Unilaterally

16

and Retroactively Repeal Congressional Appropriations.

17

Even if the Executive Order had been the result of an explicit delegation of power from Congress

18 to the President, the President would not possess – and could not be given – the power to retroactively

19

20 grants” in general, and neither authorizes the blocking of federal grant money to a jurisdiction because it fails to comply with immigration laws and policies.

21 4 See, e.g., Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous

22 Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015);

23 Sanctuary City All Funding Elimination Act of 2015, H.R. 3073, 114th Cong. (2015); Mobilizing

Against Sanctuary Cities Act, H.R. 3002, 114th Cong. (2015); Stop Sanctuary Cities Act, S. 1814, 114th 24 Cong. (2015); Improving Cooperation with States and Local Governments and Preventing the Catch and

25

Release of Criminal Aliens Act of 2015, S. 1812, 114th Cong. (2015); Protecting American Citizens Together Act, S. 1764, 114th Cong. (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th

26 Cong. (2015); A Bill to Prohibit Appropriated Funds from Being Used in Contravention of Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, S. 80, 114th Cong.

27 (2015).

28

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1 repeal congressional appropriations once they become law. Here, the City and County of San Francisco

2 and the County of Santa Clara have already been allocated a wide variety of federal funds, including 3 funds for social services, homeless shelter maintenance, and public infrastructure projects.5 The

4 President “does not have unilateral authority to refuse to spend the funds” that have already been

5 appropriated by Congress. See In re Aiken County, 725 F.3d 255, 261 n.1 (D.C. Cir. 2013); see also

6 Train v. City of New York, 420 U.S. 35, 44 (1975) (finding that Executive did not have discretion to

7 spend less than the full amount authorized by Congress under the Federal Water Pollution Contract Act

8 Amendments of 1972, stating that if “Congress intended to confer any discretion on the Executive to

9 withhold funds from this program at the allotment stage, it chose quite inadequate means to do so”). As

10 former Chief Justice Rehnquist wrote when he was Assistant Attorney General in 1969, “with respect to

11 the suggestion that the President has a constitutional power to decline to spend appropriated funds, we

12 must conclude that existence of such a broad power is supported by neither reason nor precedent. . . . It

13 is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President 14 to comply with a Congressional directive to spend.”6

15

The Constitution does not permit even Congress to authorize the President to cancel funds

16 retroactively and unilaterally after they have become part of a duly enacted law. In Clinton v. City of

17 New York, 524 U.S. 417 (1998) the Supreme Court struck down the Line Item Veto Act, in which

18 Congress granted the President authority to cancel three types of provisions that had been signed into

19 law: (1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or

20

21 5 See e.g., Decl. of Ben Rosenfield in Supp. of CCSF’s Mot. for Prelim. Inj. ¶ 10-11, City and County of
22 San Francisco v. Trump et al., No. 3:17-cv-00485 (N.D. Cal. Mar. 8, 2017), Dkt. No. 22; Decl. of

23

Melissa Whitehouse in Supp. of CCSF’s Mot. for Prelim. Inj. ¶ 16, City and County of San Francisco v. Trump et al., No. 3:17-cv-00485 (N.D. Cal. Mar. 8, 2017), Dkt. No. 23; Decl. of Santa Clara County

24 Chief Operating Officer Miguel Márquez ¶¶ 16-18, Santa Clara v. Donald J. Trump et al., No. 3:17-cv00574-WH (N.D. Cal. Feb. 23, 2017), Dkt. No. 29.

25 6 Memo. from William H. Rehnquist, Assistant Att’y Gen., Office of Legal Counsel, to Edward L.

26 Morgan, Dep. Counsel to the President (Dec. 1, 1969), reprinted in Executive Impoundment of Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the

27 Judiciary, 92d Cong. 279, 282 (1971).

28

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1 (3) any limited tax benefit. The Court held that by allowing the President to repeal or amend duly

2 enacted acts of Congress, the Line Item Veto Act violated the Presentment Clause of Article I. The

3 Court explained that the Framers designed a “single, finely wrought and exhaustively considered”

4 procedure for a bill to become law, and that by allowing the President to alter text of statutes after they

5 were already enacted, the Line Item Veto Act contravened this constitutionally mandated procedure.

6 Clinton, 524 U.S. at 439-40 (citing Chadha, 462 U.S. at 951). In a concurring opinion, Justice Kennedy

7 expounded on the importance of separation of powers and the spending power:

8

It follows that if a citizen who is taxed has the measure of the tax or the

9

decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.

10

Money is the instrument of policy and policy affects the lives of citizens.

The individual loses liberty in a real sense if that instrument is not subject

11

to traditional constitutional constraints. . . . The law establishes a new

mechanism which gives the President the sole ability to hurt a group that

12

is a visible target, in order to disfavor the group. . .

13 Clinton, 524 U.S. at 451 (Kennedy, J., concurring).

14

Similarly here, even if Congress had granted the Executive the authority to impose the

15 retroactive funding conditions imposed by the Executive Order (which it clearly has not done), any such

16 delegation would violate Article I of the Constitution and separation of powers. The Executive Order

17 seeks to add an additional enforcement clause to federal immigration laws that threatens “sanctuary”

18 jurisdictions with the loss of all federal funding, even though that funding has been authorized by

19 Congress in a host of unrelated statutes. Any such delegation would impermissibly vest with the

20 President unilateral power to revise laws after they have been enacted by Congress, giving him a wholly

21 new power to punish local jurisdictions with a powerful “instrument of policy” if they fail to comply

22 with his immigration policies. See Clinton, 524 U.S. at 451. Congress did not, and could not, grant the

23 Executive this new power.

24

The usurpation of power reflected in Section 9 of the Executive Order contrasts sharply with the

25 limited procedure established by the Congressional Budget and Impoundment Control Act of 1974, Pub.

26 L. No. 93-344, Title X, 88 Stat. 332, under which the President may rescind or reserve funds that have

27 already been promised by Congress if – but only if – he receives approval from Congress within 45

28 days. In order to rescind or reserve such funds, the President must transmit to Congress a “special

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1 message” declaring the amount of funds proposed to be rescinded, the reasons behind such a rescission,

2 and “all facts, circumstances and considerations relating to or bearing up on the proposed rescission.” 2

3 U.S.C.A. § 683(a). Unless Congress acts within 45 days to support termination of the funds, the funds

4 must be made available for obligation as originally intended. Id. § 683(b). Section 9 of the Executive

5 Order essentially attempts a presidential impoundment without the necessary express Congressional

6 approval. Without Congressional approval, the Executive simply lacks constitutional authority to limit 7 the delivery of funds that Congress has duly appropriated.7

8 III. The Executive Order Purports to Exercise Spending Power That Even Congress Lacks.

9

Section 9 of the Executive Order attempts to exercise the spending power in a manner that far

10 exceeds the limits of even Congress’s power of the purse. The spending power is not unlimited and is

11 subject to important constitutional restrictions. In order for a spending condition to pass muster, (1) the

12 spending decision at issue must promote the general welfare, (2) the condition must be unambiguous,

13 (3) the condition must relate to Congress’s purpose in spending the funds and the federal interest in

14 question, (4) the condition imposed on the states must not, in itself, be unconstitutional, and (5) the

15 condition must not be unduly coercive. See South Dakota v. Dole, 483 U.S. 203, 207-208 (1987).

16

Section 9 of the Executive Order violates these constitutional limits on the spending power.

17 First, although the Executive Order purports to act in the interest of “national security and public

18 safety,” 82 Fed. Reg. at 8799, the decision of whether particular spending should occur to promote the

19 general welfare is a decision that rests with Congress, not the President. As discussed above, Congress

20 has made no such determination here; to the contrary, it has considered, and chosen not to adopt,

21 measures that would have done so.

22

23

24 7 This situation also differs from that presented in a case like Davis v. Monroe County Board of

25

Education, 526 U.S. 629 (1999), in which the Supreme Court recognized that Congress had enacted legislation pursuant to its spending power and specifically “authorized an administrative enforcement

26 scheme” for that legislation, Title IX. Id. at 638. The Court emphasized that Congress had clearly provided for the spending condition in Title IX itself, and the statute’s “plain language confine[d] the

27 scope of prohibited conduct.” Id. at 644.

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1

Second, the spending condition was far from “unambiguous.” When Congress exercises its

2 spending power and attaches conditions to the receipt of federal funds, such conditions must be

3 unambiguous and must be set forth clearly in advance, akin to a contract between the federal and local

4 government. See Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). “The

5 legitimacy of Congress’s power to legislate under the spending power thus rests on whether the State

6 voluntarily and knowingly accepts the terms of the ‘contract.’” Id. In order for a condition to be valid

7 under the spending clause, the recipient must know exactly what is expected of it as a condition of the

8 grant. The Executive Order fails this test – it applies retroactively and requires compliance with certain

9 immigration laws and policies as a prerequisite for eligibility for almost all “Federal grants.” Neither

10 the immigration laws nor the enactments authorizing the funding grants at issue contain such conditions;

11 nor is there any basis to conclude that San Francisco and Santa Clara County “voluntarily and

12 knowingly” accepted the condition that nearly all of their federal funding would be dependent upon

13 compliance with the demands of the Executive Order.

14

Third, there is no nexus between the condition imposed and the purpose of the overall objectives.

15 See Dole, 483 U.S. at 207-208. In order to be valid, the spending condition must be “reasonably

16 related” to the purpose of the expenditure. See New York v. United States, 505 U.S. 144, 172 (1992)

17 (upholding spending conditions when both conditions and payments addressed the problem of

18 radioactive waste disposal). By threatening to withhold all federal funds (with the exception of those

19 funds “deemed necessary for law enforcement” by the Executive) based on lack of compliance with an

20 immigration-related policy, the Executive Order does not come close to satisfying this requirement. See

21 82 Fed. Reg. at 8801. The Executive Order threatens the local jurisdictions’ ability to receive funds for

22 social services, public infrastructure projects, and many other non-law enforcement programs and

23 sources that have no nexus to immigration. The complete absence of any nexus between the condition

24 purportedly imposed by the Executive Order and the purposes of the appropriated funds further renders

25 the spending condition unconstitutional.

26

Finally, the financial inducement cannot be “so coercive as to pass the point at which pressure

27 turns into compulsion.” See Dole, 483 U.S. at 211. The Supreme Court found in National Federation of

28 Independent Business v. Sebelius that the threatened loss of all of a state’s Medicaid funds, an amount

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1 that would be over 10% of a state’s overall budget, was so coercive as to rise to the level of a “gun to the

2 head.” 132 S. Ct. 2566, 2604 (2012). Here, the local jurisdictions are at risk of losing all federal funds –

3 a risk that would be crippling if it is comes to fruition. Far from the “relatively mild encouragement”

4 found in Dole, 483 U.S. at 211, where only 5% of a state’s highway funds were at stake, the Executive

5 Order threatens to take away almost all of the local jurisdictions’ federal dollars, a threat that is too

6 coercive to stand constitutional muster under the spending clause.

7

CONCLUSION

8

By wildly exceeding the scope of executive power and the spending clause, the President has

9 violated both the text and the spirit of the Constitution. Accordingly, the Court should find the spending

10 provisions of Section 9 of the Executive Order to be unconstitutional.

11

12 DATED: March 22, 2017 13 14 15 16 17 18 19 20 21 22

Respectfully submitted,
COVINGTON & BURLING LLP
By: /s/ Sonya D. Winner Sonya D. Winner (Bar No. 200348) swinner@cov.com Jun Li∗ junli@cov.com COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091
Attorneys for Amici Curiae Professors of Constitutional Law, Administrative Law, and Immigration Law

23

24 ∗ Admitted to practice in the United States District Court for the Southern District of New York. See

25

Order Regarding Amicus Briefs, County of Santa Clara v. Donald J. Trump, et al., No. 17-cv-00574WHO (N.D. Cal. Feb. 24, 2017), Dkt. No. 40 (waiving the pro hac vice requirements of Northern

26 District of California Local Rule 11-3 for attorneys admitted to practice and in good standing in any United States District Court); Order Regarding Amicus Briefs, City and County of San Francisco v.

27 Donald J. Trump, et al., No. 17-cv-00485-WHO (N.D. Cal. Mar. 21, 2017), Dkt. No. 31 (same).

28

BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS

12

Case No. 3:17-cv-00485-WHO Case No. 3:17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 36-2 Filed 03/22/17 Page 1 of 2

1 Sonya D. Winner (Bar No. 200348) swinner@cov.com
2 COVINGTON & BURLING LLP One Front Street, 35th Floor
3 San Francisco, California 94111-5356 Telephone: (415) 591-6000
4 Facsimile: (415) 591-6091

5 Attorneys for Amici Curiae Professors of Constitutional Law, Administrative Law, and Immigration Law
6

7

UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10 CITY AND COUNTY OF SAN FRANCISCO,

11

Plaintiffs,

12 v.

13

DONALD J. TRUMP, President of the United 14 States, UNITED STATES OF AMERICA,

15

JOHN F. KELLY, Secretary of United States Department of Homeland Security, JEFFERSON B.

16 SESSIONS, Attorney General of the United States,

Civil Case No. 3:17-cv-00485-WHO

17

Defendants.

18 19 COUNTY OF SANTA CLARA,

Civil Case No. 3:17-cv-00574-WHO

20

Plaintiff,

21

v.

22 DONALD J. TRUMP, President of the United

23 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

24 Department of Homeland Security, JEFFERSON B.

SESSIONS, in his official capacity as Attorney 25 General of the United States, JOHN MICHAEL

26

“MICK” MULVANEY, in his official capacity as Director of the Office of Management and Budget,

27 and DOES 1-50,

[PROPOSED] ORDER GRANTING ADMINISTRATIVE MOTION OF PROFESSORS OF CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, AND IMMIGRATION LAW FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

28

Defendants.

[PROPOSED] ODER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Case No. 3:17-cv-00485-WHO Case No. 3:17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 36-2 Filed 03/22/17 Page 2 of 2

1

The Court, having considered the Administrative Motion of Professors of Constitutional Law,

2 Administrative Law, and Immigration Law for Leave to File an Amicus Curiae Brief in Support of

3 Plaintiffs’ Motion for Preliminary Injunction (the “Administrative Motion”), and for good cause

4 appearing therefore, hereby orders that the Administrative Motion is GRANTED.

5

Amici may file the brief attached as Exhibit 1 to the Administrative Motion in the above-

6 captioned cases.

7

8

IT IS SO ORDERED.

9

10 Dated: __________________

11

By:

12

Hon. William H. Orrick

United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24 25 26 27 28

[PROPOSED] ODER GRANTING ADMINISTRATIVE MOTION

1

FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Case No. 3:17-cv-00485-WHO Case No. 3:17-cv-00574-WHO

 
 Case 3:17-cv-00485-WHO Document 38 Filed 03/22/17 Page 1 of 6

1 DECHERT LLP

NATHAN M. MCCLELLAN (SBN 291435)

2 FRED T. MAGAZINER

CHRISTOPHER S. BURRICHTER

3 Email:

nathan.mcclellan@dechert.com

Email:

fred.magaziner@dechert.com

4 Email:

christopher.burrichter@dechert.com

US Bank Tower

5 633 West 5th Street

37th Floor

6 Los Angeles, California 90071-2013

Telephone: +1 213 808 5700

7 Facsimile: +1 213 808 5760

8 Attorneys for Amicus Curiae Southern Poverty Law Center
9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 CITY AND COUNTY OF SAN FRANCISCO,

Case No. 17-cv-00485 WHO

15 Plaintiff,

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF SOUTHERN

16 v.

POVERTY LAW CENTER AND OTHER AMICI IN SUPPORT OF COUNTY OF

17 DONALD J. TRUMP, President of the

SANTA CLARA AND CITY AND COUNTY OF SAN FRANCISCO’S MOTIONS FOR

18 United States of America, JOHN F.

PRELIMINARY INJUNCTION

KELLY, in his official capacity as Secretary

19 of the United States Department of Homeland Security, JEFFERSON B.

Date: April 12, 2017 Time: 2:00 p.m.

20 SESSIONS, in his official capacity as Attorney General of the United States,

Dept.: Courtroom 2 Judge: Hon. William H. Orrick

21 JOHN MICHAEL “MICK” MULVANEY,

in his official capacity as Director of the

Date Filed: January 31, 2017

22 Office of Management and Budget, and DOES 1-50,

Trial Date: Not Yet Set

23 Defendants.

24

25

26

27

28
DECHERT LLP
ATTORNEYS AT LAW LOS ANGELES

SO. POV. LAW CTR’S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF.
CASE NO. 17-CV-00485 WHO

Case 3:17-cv-00485-WHO Document 38 Filed 03/22/17 Page 2 of 6

1

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

2

The Southern Poverty Law Center and additional amici1 hereby request permission to file

3 the attached amici curiae brief2 in support of the motions for preliminary injunctions filed by

4 Plaintiffs County of Santa Clara and City and County of San Francisco.3 In support of this

5 motion, Southern Poverty Law Center and amici state:

6 I.

STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE SOUTHERN POVERTY LAW CENTER

7 The Southern Poverty Law Center (“SPLC”) is a nonprofit legal advocacy organization

8 based in Montgomery, Alabama, with additional offices in Georgia, Florida, Louisiana, and

9 Mississippi. The SPLC was founded in 1971 with the mission of ensuring civil rights for all.

10 Since then, the SPLC has worked tirelessly to protect the most vulnerable members of society,

11 winning numerous landmark legal victories throughout the American South. The SPLC

12 specifically works to protect the civil rights of immigrants and migrant workers, many of whom

13 face discrimination, exploitation, and outright abuse. For instance, the SPLC has recently

14 launched the Southeast Immigrant Freedom Initiative, a project that will enlist and train lawyers

15 to provide pro bono counsel to immigrants who have been detained and are facing deportation

16 proceedings. The SPLC regularly engages in targeted litigation and advocacy on behalf of

17 immigrant communities.

18 In the course of its work on behalf of immigrants, the SPLC has acquired experience with

19 local jurisdictions that voluntarily allow their local law enforcement to be commandeered by the

20 federal government in order to enforce federal immigration priorities. Executive Order 13768, 82

21 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”), at issue in these cases, seeks to

22 involuntarily compel local jurisdictions across the country to adopt the same practices. The SPLC

23

24
25
26
27
28
DECHERT LLP
ATTORNEYS AT LAW LOS ANGELES

1 Exhibit 1 to this Motion identifies each of the additional amici and explains each amici’s interest in, and reasons for, the attached amici curiae brief. 2 Attached as Exhibit 2 to this Motion. 3 The County of Santa Clara has filed a motion for a nationwide preliminary injunction in County of Santa Clara v. Trump, et al., Case No. 17-cv-574-WHO (N.D. Cal.). Although these two cases have not been consolidated and have separate hearing dates, both cases have been assigned to the same Judge and the Plaintiffs in each case have requested a nationwide preliminary injunction of the same Executive Order. Amici’s arguments in their attached brief apply equally to both cases. Amici therefore submit the same proposed brief in each case.

- 1 -

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CASE NO. 17-CV-00485 WHO

Case 3:17-cv-00485-WHO Document 38 Filed 03/22/17 Page 3 of 6

1 believes that these practices constitute bad public policy, with harmful consequences for local

2 jurisdictions and the immigrant communities who live in them, and that the Executive Order

3 seeking to compel these practices is constitutionally flawed. The SPLC is deeply interested in

4 this litigation because the Executive Order, if implemented, will have a dramatic impact on issues

5 that are central to the SPLC’s mission and work.

6 II. REASONS FOR AND RELEVANCE OF AMICI CURIAE BRIEF

7

The SPLC focuses primarily on litigation and advocacy in the southern United States. As

8 described above, many jurisdictions in the SPLC’s area of regular operations currently voluntarily

9 employ the same practices that the Executive Order seeks to involuntarily compel Santa Clara,

10 San Francisco, and all local jurisdictions across the country to adopt. The SPLC has witnessed

11 the consequences of these practices in a variety of jurisdictions across the American South.

12

The proposed brief of amici curiae provides a short synopsis of several distinct types of

13 harm that occur when local police carry out federal immigration laws. These harms are not all

14 self-evident, but have instead come to light through the SPLC’s and other amici’s longstanding

15 relationship with immigrant communities, including their membership in these communities. The

16 practice of local police voluntarily assisting in the enforcement of federal immigration law is not

17 as widespread in Santa Clara, San Francisco, or the Northern District of California. Accordingly,

18 the proposed brief of amici curiae is relevant to this litigation because it will permit the SPLC and

19 other amici to share with the Court their experience and understanding of the consequences of the

20 practices that the Executive Order seeks to compel, based on extensive experience in the southern

21 United States, where these practices are commonplace.

22 III. CONCLUSION

23

For the foregoing reasons, the Southern Poverty Law Center and amici hereby request the

24 Court to grant leave to file an amici curiae brief in support of County of Santa Clara and City and

25 County of San Francisco’s motions for preliminary injunction.

26

27

28
DECHERT LLP
ATTORNEYS AT LAW LOS ANGELES

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Case 3:17-cv-00485-WHO Document 38 Filed 03/22/17 Page 4 of 6

1 Dated:
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECHERT LLP
ATTORNEYS AT LAW LOS ANGELES

March 22, 2017

Respectfully Submitted,
Dechert LLP
By: /s/ Nathan M. McClellan Nathan M. McClellan Fred T. Magaziner Christopher S. Burrichter Attorneys for Amicus Curiae Southern Poverty Law Center

- 3 -

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Case 3:17-cv-00485-WHO Document 38 Filed 03/22/17 Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECHERT LLP
ATTORNEYS AT LAW LOS ANGELES

Southern Poverty Law Center

By: /s/ Naomi Tsu Naomi Tsu GA Bar No. 507612 1989 College Ave., NE Atlanta, GA 30317 (t): 404-521-6700 (f): 404-221-5857 naomi.tsu@splcenter.org Attorney for proposed amici curiae Adelante Alabama Worker Center, Alabama Coalition for Immigrant Justice, American Federation of Teachers, Americans for Immigrant Justice, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice (Asian Law Caucus, Los Angeles, AAJC, and Atlanta), Coalition for Humane Immigrant Rights, Equal Rights Advocates, Florida Immigrant Coalition, Inc., Florida Legal Services, Inc., Greater Birmingham Ministries, Greater Rochester Coalition for Immigration Justice, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, Jobs With Justice, Justice in Motion, Latin American Legal Defense and Education Fund, LatinoJustice PRLDEF, National Employment Law Project, National Immigration Law Center, New Orleans Workers’ Center for Racial Justice, Northwest Forest Worker Center, Refugee and Immigrant Center for Education and Legal Services, Safe Horizon, Southeast Immigrant Rights Network, St. Louis Workers Education Society, Tennessee Immigrant and Refugee Rights Coalition, We Belong Together, Worker Justice Center of New York, Inc., Workers Defense Project, and Worksafe

- 4 -

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CASE NO. 17-CV-00485 WHO

Case 3:17-cv-00485-WHO Document 38 Filed 03/22/17 Page 6 of 6

1

The undersigned hereby attests that all signatories hereto, together with their respective

2 clients on whose behalf this filing is submitted, concur in the contents of the within MOTION

3 FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF SOUTHERN POVERTY LAW CENTER

4 AND OTHER AMICI IN SUPPORT OF COUNTY OF SANTA CLARA AND CITY AND

5 COUNTY OF SAN FRANCISCO’S MOTIONS FOR PRELIMINARY INJUNCTION and have

6 authorized this filing.

7

By: /s/ Nathan M. McClellan

8

Nathan M. McClellan

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
DECHERT LLP
ATTORNEYS AT LAW LOS ANGELES

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CASE NO. 17-CV-00485 WHO

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 1 of 10
Exhibit 1

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 2 of 10

Additional Amici

Num. Identity of Amici

1

Adelante Alabama Worker

Center

2

Alabama Coalition for

Immigrant Justice (ACIJ)

3

American Federation of

Teachers

Description of Organization and Interest
Adelante Alabama Worker Center unites day laborers, domestic workers, and other low-wage and immigrant workers and their families in the Birmingham area to defend our rights, promote our dignity, and pursue justice for all. The Alabama Coalition for Immigrant Justice is a grassroots, statewide network of individuals and organizations that works to advance and defend the rights of immigrants in Alabama. Our coalition consists of seven non-profit organizations, 15 grassroots immigrant community organizations, and hundreds of individual members. The American Federation of Teachers (AFT), an affiliate of the AFL-CIO, was founded in 1916 and today represents approximately 1.6 million members who are employed across the nation in K-12 and higher education, public employment and healthcare. The AFT has a longstanding history of supporting and advocating for the civil rights of our members and the communities they serve. The majority of AFT members work in the public sector and provide necessary services, such as healthcare and education, to the public. In their work, AFT members interact everyday with individuals, many of whom fear that they will have to disclose their immigration status when they seek the service of an AFT member. The AFT is greatly concerned about the implications that Executive Order 13768 will have on public employees in their roles as servants to their communities. For these reasons, AFT is uniquely situated to comment on the harmful impact of Executive Order 13768 on local governments’ ability to effectively and efficiently serve their residents.

1

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 3 of 10

Num. Identity of Amici

Description of Organization and Interest

4

Americans for Immigrant

Amicus Americans for Immigrant Justice (AI Justice),

Justice

formerly Florida Immigrant Advocacy Center, is a non-

profit law firm dedicated to promoting and protecting

the basic rights of immigrants. Since our founding in

1996, AI Justice has served over 90,000 immigrants

from all over the world. Our clients are unaccompanied

immigrant children; survivors of domestic violence,

sexual assault, and human trafficking and their

children; immigrants who are detained and facing

removal proceedings; as well as immigrants seeking

assistance with work permits, legal permanent

residence, asylum and citizenship. A substantial portion

of our clients include individuals who have been

irreparably traumatized and victimized by abuse and

violence and are seeking refuge. Part of our mission is

to ensure that immigrants are treated justly, and to help

bring about a society in which the contributions of

immigrants are valued and encouraged. In Florida and

on a national level, we champion the rights of

immigrants; serve as a watchdog on immigration

detention practices and policies; and speak for

immigrant groups who have particular and compelling

claims to justice.

5

Asian American Legal Defense The Asian American Legal Defense and Education

and Education Fund

Fund (AALDEF), founded in 1974, is a national

organization that protects and promotes the civil rights

of Asian Americans. By combining litigation,

advocacy, education, and organizing, AALDEF works

with Asian American communities across the country

to secure human rights for all. The fears of deportation

in the Asian American community are palpable, in light

of their long history of discrimination: Muslim

immigrant families targeted because of their religion,

Japanese American families who were forcibly

relocated and imprisoned in camps during World War

II, and Chinese American families who were subject to

the Chinese Exclusion Act. Giving immigration

powers and responsibilities to local and state police

forces will clearly deter Asian Americans from relying

on those agencies.

2

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 4 of 10

Num. Identity of Amici

6

Asian Americans Advancing

Justice - Asian Law Caucus

7

Asian Americans Advancing

Justice - Los Angeles

8

Asian Americans Advancing

Justice | AAJC

9

Asian Americans Advancing

Justice-Atlanta

Description of Organization and Interest
Asian Americans Advancing Justice - Asian Law Caucus (ALC) was founded in 1972 with a mission to promote, advance, and represent the legal and civil rights of Asian and Pacific Islanders, with a particular focus on low-income members of those communities. Advancing Justice - ALC is part of a national affiliation of Asian American civil rights groups, with offices in Los Angeles, Chicago, Atlanta and Washington DC. ALC has a long history of protecting and advocating on behalf of immigrants through direct legal services, impact litigation, community education, and policy work, including around vulnerabilities due to immigration status. Asian Americans Advancing Justice - Los Angeles (Advancing Justice - LA) is the nation's largest legal and civil rights organization for Asian Americans, Native Hawaiians, and Pacific Islanders (AANHPI). Through direct services, impact litigation, policy advocacy, leadership development, and capacity building, Advancing Justice - LA focuses on the most vulnerable members of AANHPI communities, including immigrant members of those communities. Asian Americans Advancing Justice | AAJC (AAJC) is a national nonprofit organization founded in 1991. Based in Washington D.C., AAJC works to advance and protect civil and human rights for Asian Americans and to build a fair and equitable society for all. Along with our Advancing Justice affiliates, AAJC promotes justice by bringing national and local constituencies together through community outreach, public policy advocacy, and litigation. Asian Americans Advancing Justice - Atlanta is the first legal and policy center dedicated to defending democracy for Asian Americans, immigrants and refugees, in Georgia and the southeast. Through its four core program areas, civic engagement, policy advocacy, legal services, and leadership development, Advancing Justice - Atlanta works to build a stronger voice for the New American majority in the New South. As an organization that serves immigrants, it is critical to Advancing Justice - Atlanta's mission that the rights of all immigrants be protected.

3

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 5 of 10

Num. Identity of Amici 10 Coalition for Humane
Immigrant Rights (CHIRLA)
11 Equal Rights Advocates
12 Florida Immigrant Coalition, Inc. (FLIC)

Description of Organization and Interest
The Coalition for Humane Immigrant Rights (CHIRLA) was founded in 1986. CHIRLA is a California leader with national impact made of diverse immigrant families and individuals who act as agents of social change to achieve a world with freedom of mobility, full human rights, and true participatory democracy. CHIRLA's mission is to achieve a just society fully inclusive of immigrants. CHIRLA organizes and serves individuals, institutions and coalitions to build power, transform public opinion, and change policies to achieve full human, civil and labor rights. Guided by the power, love, and vision of our community, CHIRLA embraces and drives progressive social change. CHIRLA was formed in response to the Immigration Reform and Control Act (IRCA) of 1986 which made hiring undocumented workers illegal, thus creating a situation ripe for worker exploitation and abuse which have increased since that time. Equal Rights Advocates (ERA) is a San Franciscobased women's and worker’s rights organization whose mission is to secure and protect equal rights and economic opportunities for women and girls through litigation and advocacy. Founded in 1974, ERA has appeared as amicus curiae in numerous Supreme Court cases, including Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Faragher v. Boca Raton, 522 U.S. 1105 (1998); and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). ERA has similarly appeared as amicus curiae in numerous California Supreme Court cases, including Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, Miller v. California Department of Corrections (2005) 36 Cal.4th 446; State Dept. of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026; and Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074. The Florida Immigrant Coalition is a statewide alliance of over 60 member organizations, including farmworkers, students, service providers, grassroots organizations and legal advocates, who come together for the fair treatment of all people.

4

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 6 of 10

Num. Identity of Amici

Description of Organization and Interest

13 Florida Legal Services, Inc. Florida Legal Services is a statewide leader in

advancing economic, social, and racial justice. We

advocate for poor, vulnerable, and hard to reach people

through impact litigation, legislative and administrative

advocacy, education, and strategic partnerships. We are

a statewide, 501(c)(3) non-profit law office with offices

in Tallahassee, Newberry, and Miami.

14 Greater Birmingham

We serve low income people in the greater

Ministries

Birmingham area with food, clothing, utility assistance,

and we also organize people in marginalized groups

along with faith communities to challenge injustice and

poverty

15 Greater Rochester Coalition Educational and civil rights activists

for Immigration Justice

16 Illinois Coalition for

ICIRR is dedicated to promoting the rights of

Immigrant and Refugee Rights immigrants and refugees to full and equal participation

in the civic, cultural, social, and political life of our

diverse society. In partnership with our member

organizations, the Coalition educates and organizes

immigrant and refugee communities to assert their

rights; promotes citizenship and civic participation;

monitors, analyzes, and advocates on immigrant-

related issues; and, informs the general public about the

contributions of immigrants and refugees.

17 Immigrant Legal Resource

The Immigrant Legal Resource Center (ILRC) is a

Center (ILRC)

national nonprofit resource center that provides

immigration legal trainings, technical assistance, and

educational materials, and engages in advocacy and

civic engagement to advance immigrant rights.

18 Jobs With Justice

Jobs With Justice is a national network that expands

people’s ability to come together to improve their

workplaces, their communities, and their lives. We

create solutions to the problems working people face

by leading campaigns, changing the conversation and

moving labor, community, student and faith voices to

action.

19 Justice in Motion

Justice in Motion challenges a developing and under-

addressed crisis in the globalizing economy: abused

migrant workers being shut out of the justice system

because they returned home to their families. Forcing

workers to choose between enforcing their rights and

going home is unjust. Justice in Motion protects

migrant rights by ensuring justice across borders

5

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 7 of 10

Num. Identity of Amici

Description of Organization and Interest
through bringing advocates together from both sides of the border.

20 Latin American Legal Defense The Latin American Legal Defense and Education

and Education Fund

Fund (LALDEF) is a grassroots nonprofit organization

(LALDEF)

formed to defend the civil rights of the Latin American

community, facilitate its access to health care and

education, and advance cross-cultural understanding in

the Mercer County, NJ region.

21 LatinoJustice PRLDEF

LatinoJustice PRLDEF was founded in 1972 as the

Puerto Rican Legal Defense and Education Fund and is

one of the nation’s leading civil rights public interest

law offices that represents Latinas and Latinos

throughout the Eastern seaboard and works to increase

their entry into the legal profession. LatinoJustice

PRLDEF has a strong interest in

addressing civil rights and human rights violations

within the Latino communities of the United States and

uses the courts to rectify these abuses.

22 National Employment Law Amicus curiae National Employment Law Project

Project

(NELP) is a nationwide advocacy organization that has

worked for over forty years to defend and expand the

labor rights of low wage and immigrant workers.

Through training, policy advocacy, education, and

strategic intervention in court cases, NELP works to

uphold the labor and employment protections of all

workers, regardless of their immigration status, so that

labor standards are followed for and by all. NELP has

participated as amicus curiae in cases around the

country addressing issues that impact immigrant

workers, including the U.S. Supreme Court's decision

in Hoffman Plastic Compounds, Inc. v. NLRB, 535

U.S. 137 (2002), and Rivera v. NIBCO, 364 F.3d 1057

(9th Cir. 2004). This Court's decision will directly

enhance NELP's, its clients, and its constituents goals

of securing safe workplaces, ensuring that workers can

safely and effectively report labor law violations to

labor enforcement and other law enforcement agencies

without retaliation or intimidation, and ensuring

coverage under labor and employment laws for all

workers.

6

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 8 of 10

Num. Identity of Amici

Description of Organization and Interest

23 National Immigration Law

The National Immigration Law Center (NILC) is the

Center

primary national organization in the United States

exclusively dedicated to defending and advancing the

rights and opportunities of low-income immigrants and

their families. Over the past 35 years, NILC has won

landmark legal decisions protecting fundamental rights,

and has advanced policies that reinforce the values of

equality, opportunity, and justice. A major concern of

the organization has been federal preemption and state

and local authority to adopt policies that promote the

wellbeing and sense of inclusion of all community

members.

24 New Orleans Workers' Center The New Orleans Workers’ Center for Racial Justice

for Racial Justice

(Workers’ Center) was founded shortly after Hurricane

Katrina. Against the backdrop of a political economy

that pitted communities of color against each other, a

group of Black and immigrant workers came together

from public housing developments, FEMA trailer

parks, day labor corners, and labor camps across

Louisiana to build a new freedom movement: multi-

racial; committed to racial, gender, and immigrant

justice; and dedicated to telling a new story about

possibility in the Southern region as a whole.

25 Northwest Forest Worker

The Northwest Forest Worker Center empowers forest

Center

workers and harvesters of non-timber forest products in

northern California, Oregon and Washington to

improve their lives and livelihoods.

26 Refugee and Immigrant Center RAICES was founded to meet the needs of immigrants

for Education and Legal

and refugees fleeing the civil wars and social upheavals

Services (RAICES)

of Central America. The organization provides counsel

and representation in a full range of defenses against

deportation, family-based immigration cases, visas, and

other affirmative applications.

27 Safe Horizon

Safe Horizon is the nation's leading victim assistance

organization. Our mission is to provide support,

prevent violence, and promote justice for victims of

crime and abuse, their families and communities.

28 Southeast Immigrant Rights SEIRN's mission is to lift up the voice and the

Network (SEIRN)

leadership of immigrant communities of the Southeast

at the regional and national levels. We promote

collaboration and exchange between our members, as

well as political education and collective action to build

just and inclusive communities. SEIRN envisions a

shared struggle between the immigrant community and

other marginalized communities to build a movement

7

Case 3:17-cv-00485-WHO Document 38-1 Filed 03/22/17 Page 9 of 10

Num. Identity of Amici

Description of Organization and Interest
that transforms the Southeast into a place that respects the dignity and the human rights of all.

29 St. Louis Workers Education St. Louis Workers Education Society 501(c)3 non-

Society

profit organization that educates and trains local

residents, especially people of color, women and youth,

to become community leaders. Our focus is on the

intersection of workers' rights, racial justice, and

disabilities empowerment.

30 We Belong Together

We Belong Together is a campaign anchored by the

National Domestic Workers Alliance to mobilize

women in support of immigration policies that keep

families together and empower women. Immigration

reform is rarely thought of as a women’s issue, but in

fact it is central to the fight for women’s equality.

Millions of immigrant women who are part of the

fabric of our communities, workplaces, and schools are

blocked from achieving their full potential because of a

broken immigration system. They perform essential

jobs, like taking care of our children and our aging

parents, and are central to family and community well-

being.

31 Worker Justice Center of New The Worker Justice Center of New York (WJCNY) is

York, Inc.

the merger of Farmworker Legal Service of NY

(FLSNY) and the Workers' Rights Law Center

(WRLC). Our merger builds on decades of

achievement in providing direct legal services to low-

wage workers, empowering communities, and

advocating for institutional change. WJCNY pursues

justice for those denied human rights with a focus on

agricultural and other low-wage workers, through legal

representation, community empowerment and

advocacy for institutional change.

32 Workers Defense Project

WDP is a worker center and part of a national

movement of organizations that seek to provide low-

wage workers with the resources they need to improve

their working and living conditions. The project

provides a source of power and hope for low-wage

workers who have little access to these important

resources. WDP is one of the few organizations in

Texas working to address workplace abuse faced by

8

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Num. Identity of Amici

Description of Organization and Interest
low-wage workers. The organization is one of the most established worker centers in the South and a leader in fighting for fair conditions for working people.

33 Worksafe

Worksafe advocates for protective worker health and safety laws and effective remedies for injured workers through the legislature and courts. Worksafe is also a Legal Support Center funded by the State Bar Legal Services Trust Fund Program to provide advocacy, technical and legal assistance, and training to the legal services projects throughout California that directly serve California's most vulnerable low-wage workers. Millions of low-wage and immigrant workers often toil long hours in harsh and hazardous work environments in California. These same workers often face employment and labor violations. Many of these workers are vulnerable immigrant workers who are the target of employer abuse and retaliation. In our work, we have encountered employers who will utilize local law enforcement as a tactic to engage in illegal retaliation based actions against workers that are voicing their concerns, injuries, illnesses, or exercising their rights.

9

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1 DECHERT LLP

NATHAN M. MCCLELLAN (SBN 291435)

2 FRED T. MAGAZINER

CHRISTOPHER S. BURRICHTER

3 Email:

nathan.mcclellan@dechert.com

Email:

fred.magaziner@dechert.com

4 Email:

christopher.burrichter@dechert.com

US Bank Tower

5 633 West 5th Street

37th Floor

6 Los Angeles, California 90071-2013

Telephone: +1 213 808 5700

7 Facsimile: +1 213 808 5760

8 Attorneys for Amicus Curiae Southern Poverty Law Center
9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 CITY AND COUNTY OF SAN FRANCISCO,
15 Plaintiff,
16 v.
17 DONALD J. TRUMP, President of the
18 United States of America, JOHN F. KELLY, in his official capacity as
19 Secretary of the United States Department of Homeland Security, JEFFERSON B.
20 SESSIONS, in his official capacity as Attorney General of the United States,
21 JOHN MICHAEL “MICK” MULVANEY, in his official capacity as Director of the
22 Office of Management and Budget, and DOES 1-50,
23 Defendants.
24

Case No. 17-cv-00485 WHO

BRIEF OF AMICUS CURIAE SOUTHERN POVERTY LAW CENTER AND OTHER AMICI IN SUPPORT OF COUNTY OF SANTA CLARA AND CITY AND COUNTY OF SAN FRANCISCO’S MOTIONS FOR PRELIMINARY INJUNCTION

Date: Time: Dept.: Judge:

April 12, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: January 31, 2017

Trial Date: Not Yet Set

25

26

27

28
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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ........................................................................................................... ii

3 INTRODUCTION ........................................................................................................................... 1

ARGUMENT ................................................................................................................................... 2

4 I. Turning Local Police Into Federal Immigration Agents Encourages Racial Profiling and

5

Other Law Enforcement Abuses............................................................................................... 2

II. Turning Local Police Into Federal Immigration Agents Degrades Trust Between the

6

Police and the Community........................................................................................................ 5

III. Turning Local Police Into Federal Immigration Agents Can Result in Private Actors

7

Exploiting and Abusing Immigrant Populations. ..................................................................... 9

8 IV. The Executive Order Will Jeopardize Local Governments’ Access To Federal Funding Due To The Risk Of Violating Title VI.................................................................................. 10

9 V. The Executive Order Will Force Local Governments to Choose Between Losing Federal
Funding and Being Exposed to Substantial Civil Liability. ................................................... 11 10 CONCLUSION .............................................................................................................................. 12

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Jimenez-Moreno v. Napolitano,

5

No. 1:11-cv-05452 (N.D. Ill. Sept. 30, 2016) ...........................................................................12

6 Melendres v. Arpaio,

989 F. Supp. 2d 822 (D. Ariz. 2013), adhered to, No. CV-07-02513-PHX-

7

GMS, 2013 WL 5498218 (D. Ariz. Oct. 2, 2013), aff’d in part, vacated in part,

784 F.3d 1254 (9th Cir. 2015), and aff’d, 784 F.3d 1254 (9th Cir. 2015) ..........................10, 11 8

9

Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317 (D. Or. April 11, 2014) ..............................................................................12

10 Montano-Pérez, et al. v. Durrett Cheese Sales, Inc., et al.,

11

Case No. 3:08-cv-1015 (M.D. Tenn.) .........................................................................................9

12 U.S. v. East Haven, No. 12-1652 (D. Conn. filed Nov. 20, 2012) ..............................................................................4
13

Villars v. Kubiatowski,

14

45 F. Supp. 3d 791, 807 (N.D. Ill. 2014) ..................................................................................12

15 Whren v. United States,

16

517 U.S. 806 (1996) ....................................................................................................................3

17 Other Authorities

18 ACLU OF GEORGIA, GEORGIA LATINO ALLIANCE FOR HUMAN RIGHTS, NATIONAL

DAY LABORER ORGANIZING NETWORK & IMMIGRANT RIGHTS CLINIC AT NYU

19

LAW SCHOOL, PREJUDICE, POLICING, AND PUBLIC SAFETY: THE IMPACT OF

20

IMMIGRATION HYPER-ENFORCEMENT IN GEORGIA 10 (July 2014) available at

http://www.law.nyu.edu/sites/default/files/upload_documents/Prejudice_Polici

21

ng_Public%20Safety.pdf.........................................................................................................4, 5

22 ADVANCEMENT PROJECT & GEORGIA LATINO ALLIANCE FOR HUMAN RIGHTS,

MANUFACTURING FELONIES: HOW DRIVING BECAME A FELONY FOR PEOPLE OF

23

COLOR IN GEORGIA 3 (Mar. 2016) available at

24

http://b.3cdn.net/advancement/a23a889905f33b63a2_lim6bsbhf.pdf. .......................................6

25 AMERICAN IMMIGRATION COUNCIL, THE CRIMINALIZATION OF IMMIGRATION IN THE UNITED STATES (July 2015) available at:

26

https://www.americanimmigrationcouncil.org/ research/criminalization-

immigration-united-states (last visited Mar. 21, 2017). ..............................................................2 27

28
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1 AMERICAN IMMIGRATION COUNCIL, SECURE COMMUNITIES: A FACT SHEET,

available at https://www.americanimmigrationcouncil.org/research/secure-

2

communities-fact-sheet (last visited Mar. 20, 2017)...................................................................3

3 Jaques Billeaud, Taxpayer costs of Sheriff Joe Arpaio's profiling case: Another

4

$13M on top of $41M, THE ARIZONA REPUBLIC (May 12, 2016), available at

http://www.azcentral.com/story/news/local/phoenix/2016/05/12/taxpayer-

5

costs-sheriff-joe-arpaios-profiling-case-another-13m-top-41m/84293950/ .............................11

6 Court Places Limits On Sheriff Arpaio To Prevent Future Racial Profiling Of

Latinos In Arizona, ACLU (Oct. 2, 2013), available at

7

https://www.aclu.org/news/court-places-limits-sheriff-arpaio-prevent-future-

8

racial-profiling-latinos-arizona .................................................................................................11

9 DEPARTMENT OF JUSTICE, INVESTIGATION OF THE NEW ORLEANS POLICE

DEPARTMENT 63 (Mar. 16, 2011) available at

10

https://www.justice.gov/sites/default/files/crt/legacy/2011/03/17/nopd_report.p

df. ................................................................................................................................................6 11

Lawrence Downes, Joe Arpaio’s American Dream, THE NEW YORK TIMES:

12

TAKING NOTE (Jul. 24, 2015), available at

13

https://takingnote.blogs.nytimes.com/2012/07/24/joe-arpaios-american-dream/ .....................10

14 TREVOR GARDNER II AND AARTI KOHLI, THE C.A.P. EFFECT: RACIAL PROFILING IN

THE ICE Criminal Alien Program (Sept. 2009), available at

15

https://www.law.berkeley.edu/files/policybrief_irving_0909_v9.pdf. .......................................3

16 Joe Hagan, The Long, Lawless Ride of Sheriff Joe Arpaio, ROLLING STONE (Aug. 2,

17

2012), available at http://www.rollingstone.com/culture/news/the-longlawless-ride-of-sheriff-joe-arpaio-20120802 ............................................................................10

18 IMMIGRANT LEGAL RESOURCE CENTER, SEARCHING FOR SANCTUARY: AN

19

ANALYSIS OF AMERICA’S COUNTIES AND THEIR VOLUNTARY ASSISTANCE WITH

DEPORTATIONS (Dec. 2016), available at

20

https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final _1-

min.pdf ........................................................................................................................................9 21

22

AARTI KOHLI, PETER L. MARKOWITZ & LISA CHAVEZ, SECURE COMMUNITIES BY THE NUMBERS: AN ANALYSIS OF DEMOGRAPHICS AND DUE PROCESS 5 (Oct.

23

2011), available at

https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf......................3

24

A. ELENA LACAYO, NATIONAL COUNCIL OF LA RAZA, THE IMPACT OF SECTION

25

287(G) OF THE IMMIGRATION AND NATIONALITY ACT ON THE LATINO

COMMUNITY 18 (2010), available at

26

http://publications.nclr.org/bitstream/handle/123456789/1067/287g_issuebrief

27

_pubstore.pdf?sequence=1&isAllowed=y. .................................................................................7

28
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1 Michael E. Miller, “This company is making millions from America’s broken

immigration system,” WASHINGTON POST (Mar. 9, 2017), available at

2

https://www.washingtonpost.com/local/this-company-is-making-millions-

3

from-americas-broken-immigration-system/2017/03/08/43abce9e-f881-11e6-

be05-1a3817ac21a5_story.html?utm_term=.1befd42af7f2. .......................................................8

4 MAI THI NGUYEN & HANNAH GILL, THE 287(G) PROGRAM: THE COSTS AND

5

CONSEQUENCES OF LOCAL IMMIGRATION ENFORCEMENT IN NORTH CAROLINA

COMMUNITIES 33 (Feb. 2010) available at

6

https://isa.unc.edu/files/2012/06/287g_report_final.pdf .............................................................4

7 PEW RESEARCH CENTER, A NATION OF IMMIGRANTS (2013) available at

8

http://www.pewhispanic.org/2013/01/29/a-nation-of-immigrants .............................................6

9 SOUTHERN POVERTY LAW CENTER, UNDER SIEGE: LIFE FOR LOW-INCOME LATINOS

IN THE SOUTH (Apr. 2009) at 11, available at

10

https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/Under

Siege.pdf. ....................................................................................................................................9 11

TENNESSEE IMMIGRANT AND REFUGEE RIGHTS COALITION & CRIMINAL JUSTICE

12

PLANNING, CITATIONS/WARRANTS FOR NO DRIVER’S LICENSE BY ETHNICITY

13

AND RACE: COMPARING THE YEAR PRIOR TO 287(G) AND THE YEAR

FOLLOWING 287(G) (2007) available at http://static1.1.

14

sqspcdn.com/static/f/373699/7070512/1274810470237/No_Drivers_License_1

_year_overview+6-2008.pdf?token=CjxGyjZITqFgFmsjkDf0vECPSk0%3D

15

(last visited Mar. 21, 2017). ........................................................................................................3

16 NIK THEODORE, INSECURE COMMUNITIES: LATINO PERCEPTIONS OF POLICE

17

INVOLVEMENT IN IMMIGRATION ENFORCEMENT (May 2013) (hereafter

INSECURE COMMUNITIES) available at

18

http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_R

EPORT_FINAL.PDF. .........................................................................................................4, 5, 6

19

20

21

22

23

24

25

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1

INTRODUCTION

2

This litigation involves the Constitutionality of Executive Order 13768, 82 Fed. Reg.

3 8799, issued by President Donald J. Trump on January 25, 2017 (the “Executive Order”). The

4 Executive Order plainly states that any state or local government that the Attorney General and

5 Secretary of Homeland Security declare to be a “sanctuary jurisdiction” will lose federal funding.

6 The Executive Order does not define “sanctuary jurisdiction,” but the term seems to apply at least

7 to any jurisdiction that refuses to comply with 8 U.S.C. § 1373 or declines to comply with civil

8 detainer requests from Immigration and Customs Enforcement (“ICE”), i.e., any state or local

9 government that refuses to allow ICE to commandeer the local police force to round up or detain

10 immigrants.

11

Plaintiffs Santa Clara County (“Santa Clara”) and the City and County of San Francisco

12 (“San Francisco”), in separate lawsuits, have challenged the constitutionality of the Executive 13 Order. The Southern Poverty Law Center (“SPLC”) and other amici1 submit this amicus brief in

14 support of Santa Clara and San Francisco, not to supplement the legal arguments that Santa Clara

15 and San Francisco have made but to inform the Court of what has happened in the South and

16 other parts of the country, where many local governments voluntarily comply with the kind of 17 ICE civil detainer requests2 to which the Executive Order seeks to force Santa Clara, San

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1 See Motion For Leave To File Amicus Curiae Brief Of Southern Poverty Law Center And Other Amici In Support Of County of Santa Clara and City and County Of San Francisco’s Motion For Preliminary Injunction, at Exhibit 1 (additional amici include Adelante Alabama Worker Center, Alabama Coalition for Immigrant Justice (ACIJ), American Federation of Teachers, Americans for Immigrant Justice, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice (Asian Law Caucus, Los Angeles, AAJC, and Atlanta), Coalition for Humane Immigrant Rights (CHIRLA), Equal Rights Advocates, Florida Immigrant Coalition, Inc. (FLIC), Florida Legal Services, Inc., Greater Birmingham Ministries, Greater Rochester Coalition for Immigration Justice, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center (ILRC), Jobs With Justice, Justice in Motion, Latin American Legal Defense and Education Fund, LatinoJustice PRLDEF, National Employment Law Project, National Immigration Law Center, New Orleans Workers' Center for Racial Justice, Northwest Forest Worker Center, Refugee and Immigrant Center for Education and Legal Services (RAICES), Safe Horizon, Southeast Immigrant Rights Network (SEIRN), St. Louis Workers Education Society, Tennessee Immigrant and Refugee Rights Coalition, We Belong Together, Worker Justice Center of New York, Inc., Workers Defense Project, and Worksafe). 2 These local governments may also have 287(g) agreements with the federal government. For more information on 287(g) agreements, which delegate immigration enforcement authority to local law enforcement agencies pursuant to Memoranda of Understanding with ICE, see https://www.ice.gov/factsheets/287g (last visited Mar. 14, 2017).

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1 Francisco, and every other state and local jurisdiction in the country to accede.

2

ICE has been pushing for years to increase its access to local jurisdictions’ law

3 enforcement resources.3 When local jurisdictions have turned their police into de facto federal

4 immigration agents, lasting harm has followed—to immigrant and non-immigrant residents, to

5 local law enforcement, and to the community as a whole. First, when local police become federal

6 immigration agents, it places them on a risky path toward racial profiling and other discriminatory

7 and abusive police conduct. Second, when local police become federal immigration agents, it

8 degrades trust between the police and the communities they serve; community trust is a crucial to

9 effective law enforcement, and its absence inflicts serious and lasting harm on both the

10 community and the local police. Third, when local police become federal immigration agents, it

11 allows private actors to intimidate and exploit immigrant populations. Fourth, an Executive

12 Order forcing local jurisdictions to allow federal immigration agents to commandeer their local

13 police forces puts those local jurisdictions in the untenable position of choosing between flouting

14 the Executive Order, on the one hand, or violating the legally protected civil and constitutional

15 rights of their residents, on the other.

16

ARGUMENT 17

I. Turning Local Police Into Federal Immigration Agents Encourages Racial

18

Profiling and Other Law Enforcement Abuses.

19

The SPLC and other amici recognize that police officers have a difficult job, and that most

20 of them want to discharge their responsibilities appropriately. Nevertheless, it is also true that

21 some police officers and departments have engaged in racial profiling and other racially

22 discriminatory or abusive behavior. Amici’s experience is that turning local police into federal

23 immigration agents encourages such racial profiling or abusive conduct, and can increase the

24 difficulty of uncovering and correcting such discriminatory or abusive conduct.

25

Local police who are determined to enforce immigration laws sometimes use racial

26

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3 See generally AMERICAN IMMIGRATION COUNCIL, THE CRIMINALIZATION OF IMMIGRATION IN THE UNITED STATES (July 2015) available at: https://www.americanimmigrationcouncil.org/ research/criminalization-immigration-united-states (last visited Mar. 21, 2017).

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1 profiling to decide whom to target and how to treat those individuals. For instance, local law

2 enforcement officials may stop Latinos4 for purported traffic violations as a pretext for

3 investigating their immigration paperwork or status. A study of arrest data in Davidson County,

4 Tenn. shows that the arrest rates for Hispanic defendants driving without a license more than

5 doubled in the year after the county entered a 287(g) agreement to enforce immigration law.5 In

6 Irving, Texas, following the police department’s agreement to partner with ICE, arrest data reveal

7 an “immediate” and “dramatic” increase in “discretionary arrests of Hispanics for petty offenses –

8 particularly minor traffic offenses” consistent with “racial profiling of Hispanics in order to filter

9 them through the [federal immigration enforcement program’s] screening system.”6 Similar

10 conclusions resulted from analysis of data on individuals arrested nationwide under the “Secure

11 Communities” program that sends the fingerprints of individuals arrested by local law

12 enforcement to the Department of Homeland Security.7 These data showed that Latinos were

13 93% of individuals arrested through Secure Communities although they are only 77% of the

14 undocumented population.8

15

Such racial profiling is wholly unconstitutional. See Whren v. United States, 517 U.S.

16 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on

17 considerations such as race.”). Racial profiling violates the Fourteenth Amendment’s Equal

18 Protection Clause, the Fourth Amendment’s ban on unreasonable searches and seizures, and Title

19

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4 This brief uses the terms “Latinos” and “Hispanics” interchangeably depending on the term used in the underlying source. Where ethnicity is not specified, the brief refers to immigrants of all ethnicities. 5 TENNESSEE IMMIGRANT AND REFUGEE RIGHTS COALITION & CRIMINAL JUSTICE PLANNING, CITATIONS/WARRANTS FOR NO DRIVER’S LICENSE BY ETHNICITY AND RACE: COMPARING THE YEAR PRIOR TO 287(G) AND THE YEAR FOLLOWING 287(G) (2007) available at http://static1.1. sqspcdn.com/static/f/373699/7070512/1274810470237/No_Drivers_License_1_year_overview+6 -2008.pdf?token=CjxGyjZITqFgFmsjkDf0vECPSk0%3D (last visited Mar. 21, 2017). 6 TREVOR GARDNER II AND AARTI KOHLI, THE C.A.P. EFFECT: RACIAL PROFILING IN THE ICE Criminal Alien Program (Sept. 2009), available at https://www.law.berkeley.edu/files/policybrief_irving_0909_v9.pdf. 7 AMERICAN IMMIGRATION COUNCIL, SECURE COMMUNITIES: A FACT SHEET, available at https://www.americanimmigrationcouncil.org/research/secure-communities-fact-sheet (last visited Mar. 20, 2017). 8 AARTI KOHLI, PETER L. MARKOWITZ & LISA CHAVEZ, SECURE COMMUNITIES BY THE NUMBERS: AN ANALYSIS OF DEMOGRAPHICS AND DUE PROCESS 5 (Oct. 2011), available at https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf.

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1 VI of the Civil Rights Act of 1964, which bars law enforcement agencies that receive federal

2 funds from discriminating on the basis of race, color, or national origin. Beyond their

3 unconstitutionality, these pretextual stops are also a waste of local police resources and taxpayer

4 dollars.9

5

Perhaps more importantly, racial profiling threatens the legitimacy of local police

6 departments within their own communities. A study of Latinos perceptions of police involvement

7 in immigration enforcement found that 62% of Latinos—including citizens and documented and

8 undocumented immigrant respondents—said that police officers stop Latinos without good reason

9 or cause very or somewhat often.10 It is unsurprising that cooperation with the police drops when

10 people fear that the police will treat them differently because of the color of their skin or their

11 ethnic origin.11

12

Police racial profiling of people of color is nothing new, but ICE’s willingness to deport

13 immigrants wrongfully seized complicates and magnifies the problem. A study of ICE arrests in

14 Georgia pursuant to immigration detainers revealed a dramatic increase in enforcement against

15 immigrants of color facilitated by a growing collaboration between local law enforcement and

16 ICE. The number of detainers issued in Georgia increased by at least 17,169% between FY 2007

17 and June FY 2013.12 In FY 2007, 66.7% of individuals subject to ICE detainers were defined by

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9 See, e.g., MAI THI NGUYEN & HANNAH GILL, THE 287(G) PROGRAM: THE COSTS AND CONSEQUENCES OF LOCAL IMMIGRATION ENFORCEMENT IN NORTH CAROLINA COMMUNITIES 33 (Feb. 2010) available at https://isa.unc.edu/files/2012/06/287g_report_final.pdf (finding that the first year of operating the 287(g) program in Mecklenburg County, North Carolina., cost $5.3 million, and the first year of operation in Alamance County, North Carolina, cost taxpayers $4.8 million). 10 NIK THEODORE, INSECURE COMMUNITIES: LATINO PERCEPTIONS OF POLICE INVOLVEMENT IN IMMIGRATION ENFORCEMENT at 16 (May 2013) (hereafter INSECURE COMMUNITIES) available at http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.P DF. 11 See, e.g., INSECURE COMMUNITIES at 5-6; see also U.S. v. East Haven, No. 12-1652 (D. Conn. filed Nov. 20, 2012) (complaint and settlement agreement arising from East Haven Police Department engaging discriminatory policing against Latinos, including by targeting Latinos for discriminatory traffic enforcement, treating Latino drivers more harshly than non-Latino drivers after a traffic stop, and by contacting ICE agents to investigate the immigration status of Latino drivers.) 12 ACLU OF GEORGIA, GEORGIA LATINO ALLIANCE FOR HUMAN RIGHTS, NATIONAL DAY LABORER ORGANIZING NETWORK & IMMIGRANT RIGHTS CLINIC AT NYU LAW SCHOOL, PREJUDICE, POLICING, AND PUBLIC SAFETY: THE IMPACT OF IMMIGRATION HYPER-ENFORCEMENT IN GEORGIA 10 (July 2014) available at http://www.law.nyu.edu/sites/default/files/

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1 ICE as having dark or medium complexion. In FY 2013 (through June 2013), 96.4% of

2 individuals subject to ICE detainers were defined by ICE as having dark or medium

3 complexion.13

4

But racial profiling is not the only evil that can result from turning local police into federal

5 immigration agents; such federal commandeering of local police can also lead to covering up

6 violent police abuse of community members.

7

Consider the experience of Angel Francisco Castro-Torres (“Castro”), a former client of

8 SPLC. On the afternoon of March 26, 2010, Castro was riding his bicycle in in Smyrna, Georgia,

9 a place where local police act as federal immigration agents. Two police officers began to follow

10 Castro and signaled him to stop riding for no reason other than his being Latino. After

11 demanding Castro’s immigration documents, the officers beat him, breaking his eye socket and

12 cheek bone. The officers then attempted to cover up their attack by taking Castro to the Cobb

13 County Jail, which maintains a 287(g) agreement with the Department of Homeland Security.

14 The officers knew that from this jail, Castro could be placed into ICE detention and possibly

15 deported, making it highly unlikely that the officers’ abusive behavior would have ever come to

16 light. Castro’s experience demonstrates how local law enforcement can be corrupted when

17 officers are told to enforce federal immigration laws.

18

II. Turning Local Police Into Federal Immigration Agents Degrades Trust

19

Between the Police and the Community.

20

Effective law enforcement requires some degree of trust between police (and other law

21 enforcement officials) and the communities they serve. The necessary trust between police and

22 the community is jeopardized when local police act as federal immigration agents. Many people

23 are reluctant to interact with local police when the police are providing information to ICE to

24 assist in deportations, holding local residents on civil detainers for ICE, or otherwise enforcing

25 federal immigration policy. A 2012 study found that 44% of Latinos were less likely to contact

26 the police if they were victims of crime due to the fear that the police would ask about their

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upload_documents/Prejudice_Policing_Public%20Safety.pdf. 13 Id. at 14.

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1 immigration status or that of people they know.14

2

This fear holds both for people who are concerned about their own immigration status and

3 those concerned for their families or friends.15 Twenty nine percent of Latino citizens reported

4 they are less likely to voluntarily offer information about crimes they know have been committed,

5 and 26 percent said they are less likely to report a crime, due to fear that police will ask about

6 their family or friends’ immigration status.16 With more than nine million people living in mixed

7 status families that include documented and undocumented members,17 it should be unsurprising

8 that fear transcends documentation status when police refuse to draw clear boundaries between

9 crime control and immigration enforcement. An undocumented woman in a physically abusive

10 relationship, for example, may be afraid to seek help from the police; a U.S citizen may fear that

11 if he provides information to the police about gang activity, it will expose his undocumented

12 mother to police attention.

13

A Department of Justice (“DOJ”) finding of discriminatory policing by the New Orleans

14 Police Department (“NOPD”) found that “members of the Latino immigrant worker community,

15 who are frequently victimized . . . reported a deep reluctance to report crime – either as victims

16 or witnesses . . .[because] NOPD officers questioned them about their immigration status.”18 In

17 2008, a year after the Davidson County, Tennessee sheriff entered into a 287(g) agreement, the

18 National Council of La Raza and the Tennessee Immigrant and Refugee Rights Coalition

19 surveyed community members’ trust of police. The survey compared the willingness of Latinos

20

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14 See, e.g., INSECURE COMMUNITIES) at 5-6; see also ADVANCEMENT PROJECT & GEORGIA LATINO ALLIANCE FOR HUMAN RIGHTS, MANUFACTURING FELONIES: HOW DRIVING BECAME A FELONY FOR PEOPLE OF COLOR IN GEORGIA 3 (Mar. 2016) (finding that “[i]mmigrant communities are increasingly wary of local police officers during traffic stops, desperately seeking to avoid all possible interactions with police, even if and when they are in danger” and “[w]here immigration is concerned, federal law enforcement cooperation with local police often leads to the unjust detention and deportation of law-abiding immigrants and impacting families.”) available at http://b.3cdn.net/advancement/a23a889905f33b63a2_lim6bsbhf.pdf. 15 See, e.g., INSECURE COMMUNITIES at 6. 16 Id. 17 PEW RESEARCH CENTER, A NATION OF IMMIGRANTS (2013) available at http://www.pewhispanic.org/2013/01/29/a-nation-of-immigrants. 18 DEPARTMENT OF JUSTICE, INVESTIGATION OF THE NEW ORLEANS POLICE DEPARTMENT 63 (Mar. 16, 2011) available at https://www.justice.gov/sites/default/files/crt/legacy/2011/03/17/nopd_report.pdf.

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1 and Blacks to contact the sheriff’s office. While both communities expressed deep discomfort

2 with interacting with police, 42% of Latinos knew of a crime that had not been reported to police,

3 compared to 4% of Blacks. This community mistrust of approaching the police in a 287(g)

4 county extended to future crimes; 54% of Latinos said they would not report a future crime,

5 compared to 27% of Blacks.19

6

The story of Oscar and Jessica Ramirez20 illustrates what happens when local police

7 engage in immigration enforcement, leaving broken trust between the police and the immigrant

8 communities they are supposed to serve. Jessica Ramirez is an undocumented immigrant who

9 was born in Guatemala and has lived in the United States for a dozen years, since she was twelve.

10 Oscar Ramirez is an undocumented immigrant who was born in Mexico. Oscar and Jessica

11 Ramirez and their four children (all of whom are U.S. citizens) live in an area of Alabama where

12 the local police have been eagerly acting as federal immigration agents.

13

On a foggy morning in October 2014, Oscar Ramirez was involved in a car accident.

14 Nobody was hurt, but Ramirez was so afraid of interacting with the local police that he fled the

15 scene of the accident. He was arrested at his home two days later. While Jessica Ramirez

16 attempted to secure her husband’s release, Oscar was transferred to ICE custody, where he

17 remained for three months. Oscar Ramirez has now been released, but is likely to be convicted

18 on felony criminal charges and deported to Mexico.

19

Because Oscar Ramirez’s fear of the police led him to flee, everyone is worse off. Most

20 obviously, Oscar has suffered; instead of sorting out the consequences of a minor car accident in

21 which nobody was hurt, Oscar now risks a felony conviction and deportation to Mexico, he lost

22 his job as a carpenter—he now works as a landscaper, making much less—and he is saddled with

23 monthly payments to a bond company.21 These financial consequences will continue to affect

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19 A. ELENA LACAYO, NATIONAL COUNCIL OF LA RAZA, THE IMPACT OF SECTION 287(G) OF THE IMMIGRATION AND NATIONALITY ACT ON THE LATINO COMMUNITY 18 (2010), available at http://publications.nclr.org/bitstream/handle/123456789/1067/287g_issuebrief_pubstore.pdf?sequ ence=1&isAllowed=y. 20 Pseudonyms. Jessica is a member of amicus Alabama Coalition for Immigrant Justice. She shared her and her husband’s story with the SPLC for purposes of inclusion in this brief. 21 This bond company, Libre by Nexus, has been sued for fraud by other immigrants who were required to sign documents in English that they did not understand and were not told of the

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1 Oscar Ramirez even in the unlikely event that he is not ultimately convicted and deported.

2

Jessica Ramirez and the Ramirez children (none of whom were in the car at the time of the

3 accident) have also been harmed. Jessica was five months pregnant at the time of the accident,

4 and she was forced to raise her children and deal with her pregnancy on her own while her

5 husband was held in ICE detention facilities. She struggles to care for her family because Oscar’s

6 income has shrunk, because the family has had to make bond payments, and because the family

7 has had to devote its scarce resources to Oscar’s criminal and immigration issues.

8

And most critically, if Oscar Ramirez is deported, his family will face a tragic choice. If

9 Jessica Ramirez stays in the United States, where her children are citizens, she will have to raise

10 the children on her own and without their father, she herself will face the threat of deportation,

11 and the family will lose its primary income-earner; if Jessica moves to Mexico with Oscar, a

12 country where she has never lived, she will leave behind all of her and her children’s friends and

13 sources of community support and she will deprive her children of the opportunity to grow up in

14 the United States and receive an education in U.S. schools, even though they are citizens.

15

It is not only the Ramirez family who has been harmed—local law enforcement has been

16 harmed as well. Instead of making (at most) a routine stop to assist in resolving a minor car

17 accident, the police were required to conduct an investigation, develop evidence, and make an

18 arrest, wasting resources that could have been put to better use elsewhere, and local prosecutors

19 now must prosecute a case that would never have arisen in the first place if Oscar Ramirez felt

20 that he could trust the police.

21

The Ramirez family’s situation provides only one illustration of the consequences of

22 eroding trust between local police and the communities they serve. That lack of trust undermines

23 effective law enforcement, wastes community resources, and creates serious problems out of

24

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company’s requirement that they wear and pay for the cost of ankle monitors. See Michael E. Miller, “This company is making millions from America’s broken immigration system,” WASHINGTON POST (Mar. 9, 2017), available at https://www.washingtonpost.com/local/thiscompany-is-making-millions-from-americas-broken-immigration-system/2017/03/08/43abce9ef881-11e6-be05-1a3817ac21a5_story.html?utm_term=.1befd42af7f2.

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1 issues that could have been resolved with appropriate early intervention.22

2

III. Turning Local Police Into Federal Immigration Agents Can Result in Private

Actors Exploiting and Abusing Immigrant Populations. 3

Even when local police behave in accordance with the highest standards of integrity and

4

decency, turning them into immigration agents can create huge problems. When local police are

5

charged with enforcing immigration laws, it creates an opportunity for unscrupulous private

6

actors to intimidate or exploit immigrant neighbors or employees; a resident or organization with

7

a grievance against an immigrant person or community can credibly wield the threat of a phone

8

call to local police, which might lead to deportation.

9

One example of this abuse occurred at the Durrett Cheese plant (“Durrett”) in Coffee

10

County, Tennessee. 23 Durrett recruited a large number of undocumented and impoverished

11

Mixteco (an indigenous Mexican population) immigrants to work at the plant.24 These

12

immigrants spoke Spanish or Mixteco, and barely any English. Durrett proceeded to mistreat

13

these employees, referring to them as “stupid Indians” and “donkeys,” and often refusing to pay

14

them minimum wage, or pay them at all. This abuse continued for over a year.

15

Eventually, the workers organized and demanded that Durrett pay them their overdue

16

and/or withheld wages. In response, Durrett called the Coffee County Sheriff’s Department

17

(“CCSD”) and had its own employees arrested for “trespassing” and turned over to ICE. Durrett

18

even provided paperwork to the CCSD to assist the Sheriff in reporting the Latino employees to

19

ICE. Here, the claimed ground for the arrests—“trespassing”—was entirely pretextual. Durrett’s

20

true motivation in having its employees arrested was to exploit local law enforcement’s

21

cooperation with federal immigration authorities. By turning its own workers over for

22

deportation proceedings, Durrett sought to avoid paying those workers the wages they were fairly

23

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22 See generally IMMIGRANT LEGAL RESOURCE CENTER, SEARCHING FOR SANCTUARY: AN ANALYSIS OF AMERICA’S COUNTIES AND THEIR VOLUNTARY ASSISTANCE WITH DEPORTATIONS (Dec. 2016), available at https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final _1-min.pdf. 23 SOUTHERN POVERTY LAW CENTER, UNDER SIEGE: LIFE FOR LOW-INCOME LATINOS IN THE SOUTH (Apr. 2009) at 11, available at https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/UnderSiege.pdf 24 SPLC later represented many of these workers in their lawsuit against Durrett. See MontanoPérez, et al. v. Durrett Cheese Sales, Inc., et al., Case No. 3:08-cv-1015 (M.D. Tenn.).

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1 due, and to deter any other undocumented workers, whether at Durrett or elsewhere, who found

2 themselves underpaid, discriminated against, or otherwise abused. It is hard enough for an

3 individual to stand up to an employer and risk being fired; it is much harder when doing so would

4 also cause that individual to risk deportation.

5

IV. The Executive Order Will Jeopardize Local Governments’ Access To Federal

Funding Due To The Risk Of Violating Title VI. 6

Racial discrimination can quickly spread throughout a local police force charged with

7

implementing federal immigration law, whether intentionally or simply as an unintended

8

consequence of immigration enforcement. When it does, such discrimination places counties

9

directly in conflict with Title VI of the Civil Rights Act of 1964 (“Title VI”). Cities that receive

10

federal financial assistance are obligated to comply with Title VI, which outlaws discrimination

11

on the basis of race, color, or national origin. When local police enter into immigration

12

enforcement agreements with ICE, those agreements are sometimes enforced in a manner that

13

directly violates Title VI.

14

One of the most notorious examples of this occurred outside the South, but is indicative of

15

what can happen when local police dedicate themselves to enforcing immigration law. The

16

Maricopa County, Arizona Sheriff’s Office (“MCSO”), under the direction of former Sheriff Joe

17

Arpaio, decided that its highest priority was to enforce federal immigration laws. Sheriff Arpaio

18

and the MCSO had earned a reputation for cruelty against Latino residents, with Sheriff Arpaio

19

explaining that his local police enforced a “pure program to go after the illegals and not the crime

20

first.”25 The DOJ filed suit against the MCSO and the sheriff in 2012, arguing in part that the

21

MCSO’s treatment of the county’s Latino residents—including its discriminatory traffic stops and

22

cruel conditions of confinement for Latino inmates—violated Title VI. A federal judge in 2013

23

determined that Sheriff Arpaio had engaged in rampant civil rights abuses, including the racial

24

profiling of Latinos. See Melendres v. Arpaio, 989 F. Supp. 2d 822 (D. Ariz. 2013), adhered to,

25

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25 Lawrence Downes, Joe Arpaio’s American Dream, THE NEW YORK TIMES: TAKING NOTE (Jul. 24, 2015), available at https://takingnote.blogs.nytimes.com/2012/07/24/joe-arpaiosamerican-dream/; Joe Hagan, The Long, Lawless Ride of Sheriff Joe Arpaio, ROLLING STONE (Aug. 2, 2012), available at http://www.rollingstone.com/culture/news/the-long-lawless-ride-ofsheriff-joe-arpaio-20120802.

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1 No. CV-07-02513-PHX-GMS, 2013 WL 5498218 (D. Ariz. Oct. 2, 2013), aff’d in part, vacated

2 in part, 784 F.3d 1254 (9th Cir. 2015), and aff’d, 784 F.3d 1254 (9th Cir. 2015). In issuing an

3 injunction to compel reforms in the MCSO, the judge found that Sheriff Arpaio and his

4 department had intentionally targeted and discriminated against Latinos in violation of the

5 Constitution, while making cosmetic changes to their policies in an attempt to make them appear

6 race-neutral.26 989 F. Supp. 2d at 902.

7

Investigations and discrimination lawsuits against local police forces carry a serious

8 financial cost for cities. By way of example, Sheriff Arpaio’s policies already cost Maricopa

9 County more than $50 million dollars in legal fees.27 The Executive Order thus creates a catch-22

10 for America’s sanctuary cities: they must either (1) comply with the Executive Order and risk

11 losing federal funding due to Title VI violations, or (2) ignore the Executive Order and risk losing

12 federal funding under the terms of the Executive Order. Santa Clara, San Francisco, and every

13 other state and local jurisdiction in the country should not be put in the position of potentially

14 losing their federal funding for either complying or not complying with the Executive Order.

15

V. The Executive Order Will Force Local Governments to Choose Between

Losing Federal Funding and Being Exposed to Substantial Civil Liability. 16

Section 9(b) of the Executive Order threatens de-funding for any jurisdiction that

17

“ignore[s] or otherwise fail[s] to honor any detainers with respect to such aliens.” If the

18

Executive Order is permitted to stand, Santa Clara, San Francisco, and every other state and local

19

jurisdiction in the country would risk losing federal funding if they ever failed to comply with any

20

ICE detainer request. This provision of the Executive Order would also put the local

21

governments in another untenable catch-22. Federal courts have found that ICE detainer requests

22

can violate the probable cause requirement of the Fourth Amendment of the Constitution, and can

23

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26 See also Court Places Limits On Sheriff Arpaio To Prevent Future Racial Profiling Of Latinos In Arizona, ACLU (Oct. 2, 2013), available at https://www.aclu.org/news/court-places-limitssheriff-arpaio-prevent-future-racial-profiling-latinos-arizona. Sheriff Arpaio was eventually voted out of office after separately being held in contempt of court. The DOJ withdrew the MCSO’s 287(g) agreement in 2011 in light of the abusive conditions in Sheriff Arpaio’s jails. 27 Jaques Billeaud, Taxpayer costs of Sheriff Joe Arpaio's profiling case: Another $13M on top of $41M, THE ARIZONA REPUBLIC (May 12, 2016), available at http://www.azcentral.com/story/news/local/phoenix/2016/05/12/taxpayer-costs-sheriff-joearpaios-profiling-case-another-13m-top-41m/84293950/.

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1 exceed ICE’s authority to make warrantless arrests and detain individuals without a neutral

2 determination regarding the likelihood of escape. See, e.g., Jimenez-Moreno v. Napolitano, No.

3 1:11-cv-05452 (N.D. Ill. Sept. 30, 2016) (holding ICE detainers exceed the scope of authority

4 delegated by Congress); Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317 (D. Or.

5 April 11, 2014) (granting summary judgment on claim of unlawful detention against county that

6 detained plaintiff pursuant to an ICE detainer)cf. Villars v. Kubiatowski, 45 F. Supp. 3d 791, 807

7 (N.D. Ill. 2014) (no probable cause for a detainer request made to allow the federal government

8 time to investigate whether plaintiff had committed a crime).

9

Under the scheme contemplated by Executive Order, Santa Clara would be forced to make

10 an unacceptable choice every time it received a detainer request from ICE. On the one hand, it

11 could refuse to comply with the request, thus risking being branded a “sanctuary jurisdiction” and

12 the concomitant risk to federal funding which that label carries. On the other hand, it could

13 choose to comply with the request, thereby perhaps violating the constitutional rights of its

14 residents, and exposing the county to litigation and potential liability. Santa Clara’s ability to

15 receive the federal funding to which it is entitled should not be conditioned on its willingness to

16 violate the constitutional rights of its residents.

17

CONCLUSION

18

For the reasons set forth above, the SPLC and other amici believe that implementation of

19 the Executive Order will irreparably harm the residents of Santa Clara, San Francisco, and every

20 other state and local jurisdiction in the country by forcing these jurisdictions to engage in federal

21 immigration law enforcement activities and imposing upon them the negative consequences for

22 law enforcement officers and residents discussed in this brief.

23 Dated:
24

March 22, 2017

Dechert LLP

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ATTORNEYS AT LAW LOS ANGELES

By: /s/ Nathan M. McClellan
Nathan M. McClellan Fred T. Magaziner Christopher S. Burrichter Attorneys for Amicus Curiae Southern Poverty Law Center

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Southern Poverty Law Center

By: /s/ Naomi Tsu Naomi Tsu GA Bar No. 507612 1989 College Ave., NE Atlanta, GA 30317 (t): 404-521-6700 (f): 404-221-5857 naomi.tsu@splcenter.org Attorney for proposed amici curiae Adelante Alabama Worker Center, Alabama Coalition for Immigrant Justice, American Federation of Teachers, Americans for Immigrant Justice, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice (Asian Law Caucus, Los Angeles, AAJC, and Atlanta), Coalition for Humane Immigrant Rights, Equal Rights Advocates, Florida Immigrant Coalition, Inc., Florida Legal Services, Inc., Greater Birmingham Ministries, Greater Rochester Coalition for Immigration Justice, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, Jobs With Justice, Justice in Motion, Latin American Legal Defense and Education Fund, LatinoJustice PRLDEF, National Employment Law Project, National Immigration Law Center, New Orleans Workers’ Center for Racial Justice, Northwest Forest Worker Center, Refugee and Immigrant Center for Education and Legal Services, Safe Horizon, Southeast Immigrant Rights Network, St. Louis Workers Education Society, Tennessee Immigrant and Refugee Rights Coalition, We Belong Together, Worker Justice Center of New York, Inc., Workers Defense Project, and Worksafe

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Case 3:17-cv-00485-WHO Document 38-2 Filed 03/22/17 Page 19 of 19

1

ATTESTATION

2

The undersigned hereby attests that all signatories hereto, together with their respective

3 clients on whose behalf this filing is submitted, concur in the contents of the within BRIEF OF

4 AMICUS CURIAE SOUTHERN POVERTY LAW CENTER AND OTHER AMICI IN

5 SUPPORT OF COUNTY OF SANTA CLARA AND CITY AND COUNTY OF SAN

6 FRANCISCO’S MOTIONS FOR PRELIMINARY INJUNCTION and have authorized this

7 filing.

8

By: /s/ Nathan M. McClellan

9

Nathan M. McClellan

10

11

12

13

14

15

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18

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 Case 3:17-cv-00485-WHO Document 39 Filed 03/22/17 Page 1 of 3

FENWICK & WEST LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 KATHRYN J. FRITZ (CSB No. 148200)

MITCHELL ZIMMERMAN (CSB No. 88456)

kfritz@fenwick.com

mzimmerman@fenwick.com

2 FENWICK & WEST LLP

PATRICK E. PREMO (CSB No. 184915)

555 California Street, 12th Floor

ppremo@fenwick.com

3 San Francisco, CA 94104

FENWICK & WEST LLP

Tel: (415) 875-2300; Fax: (415) 281-1350 801 California Street

4

Mountain View, CA 94041

Tel: (650) 988-8500; Fax: (650) 938-5200

5 ANNASARA G. PURCELL (CSB No. 295512) MEGHAN RHEA (CSB No. 197307)

6

apurcell@fenwick.com FENWICK & WEST LLP

rhea@wgrpc.com WG+R LAW GROUP, P.C.

7

1191 Second Avenue, 10th Floor Seattle, WA 98101

2233 Santa Clara Avenue Alameda, CA 94501

8 Tel: (206) 389-4510; Fax: (206) 389-4511

Tel: (510) 323-4034; Fax: (510)747-1724

9 ATTORNEYS FOR AMICI CURIAE TECHNOLOGY COMPANIES

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 COUNTY OF SANTA CLARA,

Case No. 3:17-cv-00574-WHO

14

Plaintiff,

15

vs.

16

DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY, in his

17

official capacity as Secretary of the United States Department of Homeland Security,

18

JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United

19

States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as

20

Director of the Office of Management and Budget, and DOES 1-50,

NOTICE OF MOTION AND MOTION FOR ADMINISTRATIVE RELIEF TO FILE BRIEF OF AMICI CURIAE TECHNOLOGY COMPANIES IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Date:

April 5, 2017

Time:

2:00 PM

Judge: Hon. William H. Orrick

Crtm:

2

Date Filed: February 3, 2017

Trial Date: Not yet set

21

Defendants.

22 CITY AND COUNTY OF SAN FRANCISCO,, Case No. 3:17-cv-00485-WHO

23

Plaintiff,

24

vs.

Date: Time:

April 12, 2017 2:00 PM

25

DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,

26

JOHN F. KELLY, Secretary of United States of Homeland Security, JEFFERSON B.

Judge: Hon. William H. Orrick

Crtm:

2

Date Filed: March 22, 2017

Trial Date: Not yet set

27

SESSIONS, Attorney General of the United States, DOES 1-100,

28

Defendants.

MOTION FOR ADMINISTRATIVE RELIEF TO FILE BRIEF OF AMICI CURIAE

CASE NO. 3:17-CV-00574-WHO CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 39 Filed 03/22/17 Page 2 of 3

FENWICK & WEST LLP
ATTORNEYS AT LAW MOUNTAIN VIEW

1

Pursuant to Civil Local Rule 7-11, Amici Curiae Technology Companies hereby

2 respectfully request that the Court grant amici leave to file an amicus curiae brief in support of

3 the Motions for Preliminary Injunction filed by Plaintiffs County of Santa Clara and City and

4 County of San Francisco. Amici’s proposed brief is attached hereto as Exhibit A. A complete list

5 of amici is attached hereto as Exhibit B, and attached again as Exhibit 1 to the proposed brief.

6

Amici are fifteen companies in the technology space, most of which are located in the

7 Plaintiff jurisdictions or neighboring jurisdictions. Amici’s interests are gravely and immediately

8 threatened by Executive Order 13,768. The American technology sector has always benefited

9 enormously from the talents and contributions of diverse groups of people, including immigrants.

10 Without the ability to attract and retain the best and brightest minds from around the world, the

11 American tech sector – and with it the rest of the American economy – will suffer. The Executive

12 Order undermines the ability of technology companies to attract diverse talent by seeking to

13 compel localities to abandon the values of diversity and inclusion that have enabled them to

14 thrive, in favor of adversity and suspicion towards “outsiders.” Inevitably, targeting certain

15 groups for expulsion also tends to render others – including lawful immigrants and citizens of

16 similar national or ethnic ancestry –the subject of bigotry. Technology companies cannot thrive if

17 their employees feel fearful and unwelcome.

18

The Executive Order further undercuts the competitiveness of American technology

19 companies by making most of the major technology centers around the country less desirable, less

20 safe places to live. In threatening to withdraw all federal funding or grants from sanctuary

21 jurisdictions – and in failing to define that term such that one can know with reasonable assurance

22 whether a jurisdiction falls within that category and will suffer the punishments to be imposed on

23 such governmental entities – the Order has thrown all of America’s major technology hubs into a

24 state of financial limbo. Companies cannot attract workers to cities that may lose the ability to

25 provide basic government services at any time. Nor can they attract employees to cities where

26 they feel unsafe, an inevitable result of the Order’s attempt to override the judgment of local

27 officials and commandeer state actors into acting as immigration enforcement officers.

28

MOTION FOR ADMINISTRATIVE RELIEF TO FILE

BRIEF OF AMICI CURIAE

1

CASE NO. 3:17-CV-00574-WHO CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 39 Filed 03/22/17 Page 3 of 3

FENWICK & WEST LLP
ATTORNEYS AT LAW MOUNTAIN VIEW

1

Amici’s proposed brief describes in greater detail how the Executive Order is adverse to

2 the interest of amici, the tech sector more broadly, and the communities in which they are

3 embedded. Amici have consulted with the parties regarding amici’s request to file an amicus

4 brief. Plaintiffs have no objection to amici’s request, and Defendant takes no position on the

5 motion. Amici’s proposed brief is twelve pages long and otherwise complies with this Court’s

6 Order regarding amicus briefs. See Dkt. No. 40.

7

For these reasons, Amici respectfully requests that the Court grant leave to file the Brief of

8 Amici Curiae Technology Companies in Support of Plaintiffs’ Motions for Preliminary

9 Injunction.

10 11 Dated: March 22, 2017

FENWICK & WEST LLP

12

By: /s/ Kathryn J. Fritz

13

Kathryn J. Fritz FENWICK & WEST LLP

14

San Francisco, CA

15

Mitchell Zimmerman Patrick E. Premo

16

FENWICK & WEST LLP Mountain View, CA

17

Annasara G. Purcell

18

FENWICK & WEST LLP Seattle, WA

19

MEGHAN RHEA

20

WG+R LAW GROUP, P.C. Alameda, CA

21

Attorneys for Amici Curiae

22

Technology Companies

23

24

25

26

27

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MOTION FOR ADMINISTRATIVE RELIEF TO FILE

2

BRIEF OF AMICI CURIAE

CASE NO. 3: 17-CV-00574-WHO CASE NO. 3:17-CV-00485-WHO

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FENWICK & WEST LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 KATHRYN J. FRITZ (CSB No. 148200)

MITCHELL ZIMMERMAN (CSB No. 88456)

kfritz@fenwick.com

mzimmerman@fenwick.com

2 FENWICK & WEST LLP

PATRICK E. PREMO (CSB No. 184915)

555 California Street, 12th Floor

ppremo@fenwick.com

3 San Francisco, CA 94104

FENWICK & WEST LLP

Tel: (415) 875-2300; Fax: (415) 281-1350 801 California Street

4

Mountain View, CA 94041

Tel: (650) 988-8500; Fax: (650) 938-5200

5 ANNASARA G. PURCELL (CSB No. 295512) MEGHAN RHEA (CSB No. 197307)

6

apurcell@fenwick.com FENWICK & WEST LLP

rhea@wgrpc.com WG+R LAW GROUP, P.C.

7

1191 Second Avenue, 10th Floor Seattle, WA 98101

2233 Santa Clara Avenue Alameda, CA 94501

8 Tel: (206) 389-4510; Fax: (206) 389-4511

Tel: (510) 323-4034; Fax: (510)747-1724

9 ATTORNEYS FOR AMICI CURIAE TECHNOLOGY COMPANIES

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 COUNTY OF SANTA CLARA,

Case No. 3:17-cv-00574-WHO

14

Plaintiff,

15

vs.

16

DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY, in his

17

official capacity as Secretary of the United States Department of Homeland Security,

18

JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United

19

States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as

20

Director of the Office of Management and Budget, and DOES 1-50,

21

Defendants.

[PROPOSED] ORDER GRANTING MOTION FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE BRIEF OF AMICI CURIAE TECHNOLOGY COMPANIES IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Date:

April 5, 2017

Time:

2:00 PM

Judge: Hon. William H. Orrick

Crtm:

2

Date Filed: February 3, 2017

Trial Date: Not yet set

22 CITY AND COUNTY OF SAN FRANCISCO,, Case No. 3:17-cv-00485-WHO

23

Plaintiff,

24

vs.

Date: Time:

April 12, 2017 2:00 PM

25

DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,

26

JOHN F. KELLY, Secretary of United States of Homeland Security, JEFFERSON B.

Judge: Hon. William H. Orrick

Crtm:

2

Date Filed: March 22, 2017

Trial Date: Not yet set

27

SESSIONS, Attorney General of the United States, DOES 1-100,

28

Defendants.

[PROPOSED] ORDER GRANTING MOTION FOR ADMINISTRATIVE RELIEF

CASE NO. 3:17-CV-00574-WHO CASE NO. 3:17-CV-00485-WHO

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FENWICK & WEST LLP
ATTORNEYS AT LAW MOUNTAIN VIEW

1

Amici Curiae Technology Companies (“Amici”) have moved under Civil Local Rule 7-11

2 for leave to file the Brief of Amici Curiae Technology Companies in Support of the Motions for

3 Preliminary Injunction filed by Plaintiffs Santa Clara County and the City and County of San

4 Francisco. None of the parties to this matter have any objection to Amici’s request.

5

For the reasons stated in Amici’s motion, the Court GRANTS the Motion for

6 Administrative Relief to the File Brief of Amici Curiae Technology Companies in Support of

7 Plaintiffs’ Motions for Preliminary Injunction. Accordingly, IT IS HEREBY ORDERED that the

8 Brief of Amici Curiae Technology Companies in Support of Plaintiffs’ Motions for Preliminary

9 Injunction is deemed filed.

10

11

IT IS SO ORDERED.

12
Dated:
13
14

, 2017

The Honorable William H. Orrick United States Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING MOTION FOR

ADMINISTRATIVE RELIEF

1

CASE NO. 3:17-CV-00574-WHO CASE NO. 3:17-CV-00485-WHO

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EXHIBIT A

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FENWICK & WEST LLP
ATTORNEYS AT LAW SAN FRANCISCO

1 KATHRYN J. FRITZ (CSB No. 148200)

MITCHELL ZIMMERMAN (CSB No. 88456)

kfritz@fenwick.com

mzimmerman@fenwick.com

2 FENWICK & WEST LLP

PATRICK E. PREMO (CSB No. 184915)

555 California Street, 12th Floor

ppremo@fenwick.com

3 San Francisco, CA 94104

FENWICK & WEST LLP

Tel: (415) 875-2300; Fax: (415) 281-1350 801 California Street

4

Mountain View, CA 94041

Tel: (650) 988-8500; Fax: (650) 938-5200

5 ANNASARA G. PURCELL (CSB No. 295512) MEGHAN RHEA (CSB No. 197307)

6

apurcell@fenwick.com FENWICK & WEST LLP

rhea@wgrpc.com WG+R LAW GROUP, P.C.

7

1191 Second Avenue, 10th Floor Seattle, WA 98101

2233Santa Clara Avenue Alameda, CA 94501

8 Tel: (206) 389-4510; Fax: (206) 389-4511

Tel: (510)323-4034; Fax: (510)747-1724

9 ATTORNEYS FOR AMICI CURIAE TECHNOLOGY COMPANIES

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13 COUNTY OF SANTA CLARA,

Case No. 3:17-cv-00574-WHO

14

Plaintiff,

15

vs.

16

DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY, in his

17

official capacity as Secretary of the United States Department of Homeland Security,

18

JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United

19

States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as

20

Director of the Office of Management and Budget, and DOES 1-50,

BRIEF OF AMICI CURIAE TECHNOLOGY COMPANIES IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Date:

April 5, 2017

Time:

2:00 p.m.

Judge: Hon. William H. Orrick

Crtm:

2

Date Filed: February 3, 2017

Trial Date: Note yet set

21

Defendants.

22 CITY AND COUNTY OF SAN FRANCISCO,, Case No. 3:17-cv-00485-WHO

23

Plaintiff,

24

vs.

Date:

April 12, 2017

25

DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,

26

JOHN F. KELLY, Secretary of United States of Homeland Security, JEFFERSON B.

27

SESSIONS, Attorney General of the United States, DOES 1-100,

Time:

2:00 p.m.

Judge: Hon. William H. Orrick

Crtm:

2

Date Filed: March 22, 2017

Trial Date: Note yet set

28

Defendants.

BRIEF OF AMICI CURIAE TECH. COS. ISO PLFS.’ MTNS. FOR PRELIMINARY INJUNCTION

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FENWICK & WEST LLP
ATTORNEYS AT LAW SAN FRANCISCO

1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION .......................................................................................................................... 1

4 ARGUMENT .................................................................................................................................. 3

5 I. 6

THE ORDER UNLAWFULLY SEEKS TO COMPEL CONDUCT ANTITHETICAL TO THE VALUES OF INNOVATIVE COMPANIES AND THEIR COMMUNITIES.................................................................................................... 3

7 II. 8 9

THE ORDER UNDERMINES THE ABILITY OF AMERICAN COMPANIES TO COMPETE GLOBALLY ..................................................................... 5
A. The Order Decreases the Livability of Nearly Every Major American Innovation Hub ....................................................................................................... 5

10

1. Most Centers of American Innovation are at Risk of Being

Designated as “Sanctuary Jurisdictions”..................................................... 5

11

2. The Executive Order Undermines the Ability of Amici to

12

Recruit Employees to “Sanctuary Cities” ................................................... 6

13

B. The Order Makes American Cities Less Safe ......................................................... 8

14

1. The Order Seeks to Override the Reasoned Judgment of

Potential Sanctuary Jurisdictions as to the Best Allocation of

15

their Public Safety Resources...................................................................... 8

16

2. The Order Threatens the Well-being of Lawful Immigrants

And Others by Penalizing Those Who Provide Services to

17

Undocumented Immigrants......................................................................... 9

18 CONCLUSION ............................................................................................................................. 12

19

20

21

22

23

24

25

26

27

28

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FENWICK & WEST LLP
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1

TABLE OF AUTHORITIES

2

Page

3 CASES

4 Printz v. United States,

521 U.S. 898 (1997) ...................................................................................................................9

5

STATUTES

6

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(U) .........................................................9

7

Immigration and Nationality Act, § 101(a)(15)(U) ..........................................................................9

8

OTHER AUTHORITIES

9

A California Waiter Refused to Serve 4 Latina Customers Until He Saw Proof of

10

Residency,

Cleve Wootson, Washington Post, March 19, 2017 .................................................................11

11

Chief Justice Cantil-Sakauye Objects to Immigration Enforcement Tractics at

12

California Courthouses

California Court Newsroom (March 16, 2017) ..........................................................................9

13

Cyberstates 2016: The Definitive State-by-State Analysis of the U.S. Tech Industry

14

Computing Technology Industry Association (March 1, 2016) .................................................8

15 Immigration Builds America’s Tech Dominance,

Walt Mossberg, Recode, (Feb 1, 2017) .....................................................................................4

16

Latinos are Reporting Fewer Sexual Assaults Amidst a Climate of Fear in

17

Immigrant Communities, LAPD Says,

James Quelly, Los Angeles Times (March 22, 2017) ................................................................8

18

New York Could Lose Billions as Trump Attacks Sanctuary Cities,

19

Jeff Mays & Ben Fractenberg, DNA Info (January 25, 2017) ...................................................7

20 Sanctuary Cities 2017: How Much Money DO They Receive From the Federal

Government?,

21

Lydia O’Neil, International Business Times, January 25, 2017 .................................................6

22 Top 10 Sanctuary Cities Face Roughly $2.27 Billion in Cuts by Trump Policy,
Rory Carroll, Robin Respaut, & Andy Sullivan, Reuters (January 26, 2017) ............................6
23

24

25

26

27

28

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1

INTRODUCTION

2

Amici Curiae Technology Companies1 urge this Court to reject the President’s bid to

3 exceed his constitutional powers and punish communities whose local governments choose –

4 consistent with their rightful role in our federal system – to decline conscription into a scheme of

5 immigration law enforcement that threatens to undermine public safety, impair local justice, and

6 up-end community stability. Amici and the communities in which they are embedded have

7 benefited from the open values, the diverse and inclusive culture, the lawful and welcoming

8 immigration practices, and the supportive local governments that are jeopardized by a hastily

9 imposed Executive Order.

10

Amici file this brief in support of the Motions for Preliminary Injunction of the County of

11 Santa Clara and the City and County of San Francisco, which seek to enjoin the enforcement of

12 Executive Order 13,768 (hereafter, the “Order”). In addition to the perils that the Order poses to

13 local public order and to the values that have been critical to the prosperity of amici across the

14 country, the Order threatens the ability of American technology companies to recruit talented

15 employees on a global scale and to compete with technology companies abroad. The harms to

16 amici and their communities will remain unless and until the Order is enjoined, regardless of

17 whether the federal government actively attempts to enforce the Order or passively relies on the

18 draconian threats that the Order embodies to pressure local governments into compliance even

19 prior to enforcement.

20

The Order purports to vest the U.S. Attorney General and Secretary of Homeland Security

21 with the discretion to designate certain state, county, or local government entities as “sanctuary

22 jurisdictions,” and to withhold all federal grants from such jurisdictions.

23

The Order does not define “sanctuary jurisdiction.” But by referring to jurisdictions that

24 have a “statute, policy, or practice” in effect that “prevents or hinders the enforcement of federal

25 law,” the Order appears to target those local city and county jurisdictions which have concluded

26 that participating in federal immigration law enforcement – yoking themselves to U.S.

27 Immigration and Customs Enforcement (ICE) in locating, detaining, and deporting alleged

28 1 A list of the companies submitting this brief is attached as Exhibit 1.

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1 undocumented immigrants – would interfere with the local jurisdictions’ ability to perform the

2 government activities which it is their primary responsibility to perform. While the reach of the

3 Order is vague in important ways, it plainly seeks to raise the specter of significant punishment

4 directed at such communities so as to intimidate them into submission.

5

The Order’s attempt to commandeer state and local governments and turn them into

6 agents of the federal government’s deportation program – and the punishment it appears to

7 mandate for jurisdictions that resist – undermines the interest of amici in at least three ways.

8

First, the conduct that the Order unconstitutionally seeks to compel is antithetical to the

9 values, practices and culture of Silicon Valley, the Bay Area, and tech hubs across the country.

10 Silicon Valley has become the technological capital of the world because of the talents, drive, and

11 ingenuity of people from all over the world. This diversity is one of our greatest strengths, and is

12 fundamental to who we are. The protective policies of San Francisco and Santa Clara are now

13 under assault as a result of the Order, which targets our values as companies and as a community.

14 The Order demands that Plaintiffs abandon those values in favor of values that have no place in

15 our community. This attack on the values of our companies and communities is likely to injure

16 our economic as well as our moral well-being.

17

Second, looking beyond Silicon Valley and the Bay area, the vast majority of

18 technological hubs in America exist in jurisdictions that might well be designated as “sanctuary

19 jurisdictions” and deprived of federal funding. The Order has overnight thrown these tech hubs

20 into financial limbo, uncertain whether they will have the means to provide basic government

21 services. By its mere existence, consequently, the Order has rendered these centers of

22 technological innovation less attractive places to live, work, and do business, undermining the

23 competitiveness of American business.

24

The Constitution constrains federal authority to rescind funding to states, inter alia, to

25 avoid precisely this type of uncertainty. In disregarding these limitations, the Order effectively

26 and immediately transforms the communities hosting America’s major concentrations of

27 technological energy and talent into jurisdictions whose technological infrastructure, educational

28 and social systems, and most vulnerable citizens, are all at risk from governmental failure.

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1

Third, the Order makes residents of jurisdictions targeted under the Order less safe. State

2 and local officials have a far closer connection to the criminal law threats and issues facing their

3 constituents than does the federal government. Notwithstanding, the Order seeks to override their

4 seasoned judgment and direct the allocation of their resources towards enforcement of federal

5 laws. While this makes all residents less safe, the Order’s sting is particularly sharp for

6 immigrants, including those who are lawfully in the United States.

7

By purporting to authorize punishing anyone who “facilitates [the] presence” of an

8 allegedly unlawful immigrant in the United States, the Order in effect penalizes association with

9 immigrants unless one is certain of their lawful status in the United States. The hostility and

10 bigotry promoted by this punishment impacts lawful as well as undocumented immigrants, and

11 runs contrary to the values of amici and of America.

12

ARGUMENT

13 I. 14

THE ORDER UNLAWFULLY SEEKS TO COMPEL CONDUCT ANTITHETICAL TO THE VALUES OF INNOVATIVE COMPANIES AND THEIR COMMUNITIES

15

Few Americans regularly go a day without using technology developed at least in part by

16 an American immigrant. When we search the Internet (Google was co-founded by Sergei Brin, a

17 refugee from the Soviet Union), when we use computers employing microchips (microchips were

18 developed by Intel co-founder Andrew Grove, a refugee from Hungary), when we plug in our

19 cellphones (rechargeable batteries were developed by Samar Basu, immigrant from India), we

20 benefit from just a few of the myriad contributions of immigrants to the American technological

21 sector.

22

This is nothing new: from the telephone in 1875 (Alexander Graham Bell, Scotland) to the

23 blender in 1932 (Stephen Poplawski, Poland), to the ATM machine in 1963 (Luther George

24 Simjian, Turkey), immigrants have consistently pushed technology forward with their ingenuity,

25 drive, and desire to give back to America.

26

Recognizing the immense importance of immigrants and their talents to the development

27 of technology, Silicon Valley has long aspired to be a place where people of all backgrounds and

28 origins can make their mark. It is a place where the ability to build something from the ground up

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1 matters more than pedigree or family name, a place where raw talent from all corners of the Earth

2 is unleashed. In the words of Google CEO Sundar Pichai, “We are able to build products for

3 everyone because we attract talent from around the world. Immigration is a strength for this

4 industry and our country – it’s one of our defining characteristics.”2

5

Of course, technology companies bring talented employees to the United States through

6 lawful means such as the H1-B program, so their lawfully-present employees are not directly

7 targeted by the Order. But the Order’s effect goes beyond targeting individuals to targeting the

8 values that have enabled the technology industry to thrive. Silicon Valley cannot be a place of

9 inclusiveness and equality if its local leaders are unlawfully compelled to act as agents of ICE in

10 the federal government’s deportation program, if fear, disruption and suspicion of “the Other”

11 become government policy. And when millions who have lived amongst us for many years are

12 demonized and targeted for expulsion, those who look like “them,” whether lawful immigrants or

13 citizens of similar ancestry, also find themselves suspect and targeted by bigotry.

14

Silicon Valley, and its sister innovative communities across the nation, cannot be places

15 where talented people of all origins thrive if citizens and lawful residents are afraid for their basic

16 safety and well-being because of such discrimination and enmity, which inevitably have

17 accompanied the campaign against those who are undocumented. People from different

18 backgrounds cannot come together to develop the world’s most sophisticated products, making

19 our companies and communities more prosperous, if they are forced to police one another’s

20 immigration status, and if many among them are made frightened and unwelcome.

21

Santa Clara, San Francisco, and the other “sanctuary jurisdictions” have adopted policies

22 that reflect the values of their residents – including amici – and reflect a belief that immigration

23 makes us stronger, smarter, and better.3 The conduct that the Order seeks to compel –

24 engagement in bias-promoting immigration enforcement – is antithetical to those values.

25

26 2 Walt Mossberg, Immigration Builds America’s Tech Dominance, Recode, (Feb 1, 2017),
available at http://www.recode.net/2017/2/1/14466978/mossberg-immigration-innovation-tech

27 3 For convenience we use the term “sanctuary jurisdiction” or cognates from time to time;
because the term is vague, amici do not thereby intend to concede that any particular entity is a
28 “sanctuary jurisdiction” within the meaning of the Order.

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1 II. THE ORDER UNDERMINES THE ABILITY OF AMERICAN COMPANIES
TO COMPETE GLOBALLY

2
In light of the enormous contribution of immigrants to all fields of technology, American

3
companies recognize we can remain competitive only by recruiting the best potential employees

4
from around the world. The Order undermines their ability to do so.

5
A. The Order Decreases the Livability of Nearly Every Major American

6

Innovation Hub

7

1. Most Centers of American Innovation are at Risk of Being Designated

as “Sanctuary Jurisdictions”

8
As Plaintiffs point out in their Motions, the Order provides no definition for the term

9
“sanctuary jurisdiction.” Rather, the Order grants the Attorney General and Secretary of

10
Homeland Security “the authority to designate, in his discretion and to the extent consistent with

11
the law, a jurisdiction as a sanctuary jurisdiction.” Order § 9(a) at 8801, emphasis added. Since

12
American law offers no definition of “sanctuary jurisdiction,” the Order’s grant of discretion is in

13
reality unbounded.

14
The Order also neglects to explain key phrases that might – properly explicated – have

15
shed light on which entities must bear the punishments accompanying being branded as a

16
“sanctuary jurisdiction.” Moreover, the Order’s reference to jurisdictions with a “statute, policy,

17
or practice, that prevents or hinders the enforcement of federal law” is also hopelessly vague. Id.

18
Further, the Order provides no mechanism for a jurisdiction to challenge its designation as a

19
“sanctuary jurisdiction” and thus obtain redress and judicial review of a unilateral, wholly

20
discretionary determination by a member of the federal executive branch. In light of these

21
ambiguities, amici have no way of knowing with reasonable confidence which localities in which

22
they operate are likely to lose federal funding, no way of planning for or resisting such potential

23
losses in their communities, and no confidence that a community once so labeled can ever escape

24
it. This level of uncertainty alone represents a substantial business hindrance (and supports the

25
void for vagueness arguments set forth by Plaintiff Santa Clara County).

26
That said, under most conventional understandings of the terms “sanctuary city,” nearly

27
every major hub for technology in the United States is at least at risk of being so designated.

28

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1 America’s most well-known technology hubs – Silicon Valley and the Bay Area – are represented

2 by the Plaintiffs in this matter and plainly bear such risk, for the reasons stated in their briefs. But

3 they are not alone: most American cities that house major technology companies (or major offices

4 of technology companies) would face a substantial probability of being punished as sanctuary

5 cities. Austin, Boston, Denver, Chicago, New York, North Carolina’s Research Triangle,

6 Portland, and Seattle, to name a few, contain remarkable concentrations of technological talent

7 and knowledge, thanks in part to the eagerness of the best minds from around the world – and

8 many others of diverse ancestry – to work there. There is, moreover, a well-known synergy

9 between technological advances by one enterprise, in one tech center, and further advances made

10 by other entrepreneurs in other cities. For that reason harm to the culture and corresponding

11 growth of technology in any of our cities tends to slow progress everywhere.

12

2. The Executive Order Undermines the Ability of Amici to Recruit

Employees to “Sanctuary Cities”

13

14

To compete in a global marketplace for exceptionally talented employees, companies

15 must be able to offer those it recruits an opportunity to live in appealing places – or at least

16 communities that are welcoming. Nearly all employees have certain base level requirements

17 without which they would not seriously consider relocating somewhere: reliable law-enforcement

18 and safety services; accessible, high-quality public schools; and decent community infrastructure

19 are a few among such baseline requirements.

20

The Order threatens such baseline requirements in every impacted city. Santa Clara and

21 San Francisco have described how rescinding federal funding would cripple their ability to

22 provide essential government services. See, e.g., Dkt. No. 1 ¶¶ 27-45. But they are not alone. If

23 the Order were enforced, reports note that Los Angeles County stands to lose $582 million in

24 federal grants, and Seattle and Denver would lose $72.7 and $39 million respectively.4 Chicago’s

25 2016 budget reflected anticipated payments of $1.48 billion from the federal government.5 The

26 4 Rory Carroll, Robin Respaut, & Andy Sullivan, Top 10 Sanctuary Cities Face Roughly $2.27 27 Billion in Cuts by Trump Policy, Reuters (January 26, 2017), available at
http://www.reuters.com/article/us-usa-trump-sanctuarycities-idUSKBN1592V9.

28 5 Lydia O’Neil, Sanctuary Cities 2017: How Much Money DO They Receive From the Federal

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1 sudden loss of this magnitude of funds threatens to disrupt basic government functions on a

2 massive scale. Impacted jurisdictions will face a Hobson’s choice between protecting their most

3 vulnerable residents and preserving services and infrastructure that support economic activity.

4

While Defendants contend that Plaintiffs’ motions are not ripe because no jurisdictions

5 have yet been designated as sanctuary jurisdictions and stripped of funding, the threat of the loss

6 of federal grants and the concomitant collapse of local services itself deters relocation to these

7 cities. If a financially sound city can be thrown into chaos at any time by a discretionary and

8 arbitrary decision of the Attorney General, with no articulated mechanism for review based on no

9 clearly defined standards or rules, people with options will not choose to relocate to that city.

10

Indeed, the Order has had an unsurprising over-deterrent effect: technological hubs have

11 already started adjusting their budgets (tried to deal with the unexpected slash in revenues) to

12 reflect uncertainty over whether they will receive federal funds, resulting in the diversion of funds

13 from other government services.6

14

Defendants could have drafted specific regulations and then later drafted an order

15 compelling compliance with reasonably articulated standards. Instead they demand compliance

16 with vague directives, perhaps intending that jurisdictions surrender their rights by avoiding even

17 the appearance of being a “sanctuary jurisdiction.” The executive branch has no right to coerce

18 local governments to abandon their rights through overreach facilitated by deliberate vagueness.

19

Defendants cannot publish unintelligible commands without defining their actual scope

20 and then contend that the harms caused by confusion over compliance are not ripe for judicial

21 review. So long as the Order stands, American tech hubs remain under threat and the ability of

22 amici to recruit talented employees is diminished.

23

America’s tech sector is overwhelmingly concentrated in cities now at risk of losing all

24
Government?, International Business Times, January 25, 2017, available at
25 http://www.ibtimes.com/sanctuary-cities-2017-how-much-money-do-they-receive-federal-
government-248146.
26 6 Jeff Mays & Ben Fractenberg, New York Could Lose Billions as Trump Attacks Sanctuary 27 Cities, DNA Info (January 25, 2017), available at https://www.dnainfo.com/new-
york/20170125/midtown/sanctuary-city-new-york-funding-how-much (noting that New York
28 City reallocated funds in 2017 budget to increase reserves in case of loss of federal funds).

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1 federal grants if the Order is allowed to stand, and this risk significantly undermines the

2 competiveness of American companies as well as the stability of the communities in which

3 technology companies are found. This in turn threatens the larger well-being of the American

4 economy: the technology sector accounts for more than seven percent of the United States’ gross 5 domestic product and over eleven percent of the national private sector payroll.7 The

6 ramifications of any blow to American technology companies are thus bound to ripple through

7 other American industries.

8

B. The Order Makes American Cities Less Safe

9

While talented employees – both lawful immigrants and U.S. citizens of targeted ancestry

10 – will generally not relocate to a city that cannot provide basic government services, they will 11 also shun cities in which they feel unwelcome and unsafe. The Order undermines the safety of 12 sanctuary cities, and with that the ability of American technology companies to attract employees.

13

1. The Order Seeks to Override the Reasoned Judgment of Potential

Sanctuary Jurisdictions as to the Best Allocation of their Public Safety

14

Resources

15

As Plaintiffs explained in their complaints, their respective policies regarding involvement

16 with federal immigration enforcement were specifically designed to enhance public safety for

17 citizens and non-citizens alike. See Dkt. 1 ¶ 58 in Case No. 17-00574; Dkt. 20 ¶ 33 in Case No.

18 17-00485.

19

When local law enforcement officers are perceived as de facto agents of ICE, victims and

20 witnesses of crimes are hesitant to engage with the legal system at all. Id. ¶ 59. Fear that a police

21 report will result in deportation has already become so acute that even when local agencies are

22 not assisting with immigration enforcement, crime victims have become reluctant to report crimes

23 of violence.8 And California judicial officials consider the looming presence of ICE officers at

24 local courthouses likely to deter witnesses and victims from engaging with the criminal justice

25

26 7 Cyberstates 2016: The Definitive State-by-State Analysis of the U.S. Tech Industry, Computing
Technology Industry Association (March 1, 2016).
27 8 James Quelly, Latinos are Reporting Fewer Sexual Assaults Amidst a Climate of Fear in
Immigrant Communities, LAPD Says, Los Angeles Times, (March 22, 2017).
28

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1 system. The Chief Justice of the California Supreme Court recently wrote to Attorney General

2 Sessions and Secretary Kelly expressing this very concern, and requesting that that ICE agents

3 cease “stalking” undocumented immigrants inside California state courthouses. Chief Justice

4 Cantil-Sakauye explained that “public trust and confidence in our state court system” are

5 diminished when “the public feels that our state institutions are being used to facilitate other goals 6 and objectives” such as immigration enforcement. 9

7

Manifestly, the public interest in encouraging undocumented persons to report crimes,

8 serve as witnesses, and cooperate with law enforcement is a substantial interest, one reflected in 9 federal law itself but undermined by the Order.10

10

The best use of ICE resources must be left to the determination of federal authorities. But

11 local counties and cities must remain free to allot their own public safety resources as they

12 choose, and to decline participation in immigration enforcement when they decide public safety

13 compels abstention from cooptation. As the Supreme Court held in Printz v. United States, the

14 Constitution bars the federal government from commandeering state officers or resources to assist

15 in enforcing federal programs. 521 U.S. 898, 925 (1997) (“[T]he Federal Government may not

16 compel the States to implement, by legislation or executive action, federal regulatory programs”).

17 The federal government cannot and should not override the judgment of city, state, and county

18 officials regarding participation in immigration enforcement.

19

2. The Order Threatens the Well-being of Lawful Immigrants

And Others by Penalizing Those Who Provide Services to

20

Undocumented Immigrants

21

On its face the Order concerns an enforcement scheme targeting only non-citizens

22 removable from the United States. Unfortunately, history compels the conclusion that when

23

24

9 California Supreme Court Chief Justice Tani G. Cantil-Sakauye & Cathal Conneely, Chief Justice Cantil-Sakauye Objects to Immigration Enforcement Tactics at California Courthouses,

25

California Court Newsroom (March 16, 2017), available at http://newsroom.courts.ca.gov/news/chief-justice-cantil-sakauye-objects-to-immigration-

26 enforcement-tactics-at-california-courthouses
10 The policy is reflected in federal immigration law, with authorizes so-called “U-Visas” to

27 normalize the immigration status of undocumented persons who are the victims of serious crimes

and assist the police or prosecutors in the investigation or prosecution of such crimes.

28 Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(U); INA § 101(a)(15)(U).

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1 nativist impulses come to the fore and people become suspect for appearing “foreign,” the

2 impacts are never so constrained. Whatever the intent behind the Order, once national origin and

3 ancestry are treated as legitimate bases for suspicion, all immigrants – as well as those thought to

4 look like them – pay the price. While this pattern has been repeated many times throughout our

5 nation’s history, this Order practically compels discrimination on the basis of national origin by

6 effectively penalizing association with immigrants unless one is certain of their documentation

7 status.

8

Section 6 of the Order provides that the Secretary of Homeland Security is authorized to

9 ensure the collection and assessment of “fines and penalties” against not only immigrants present

10 without authorization in the United States, but also against “those who facilitate their presence in

11 the United States.” The Order does not state that such facilitation must be “knowing,” and

12 liability appears to be strict. Importantly, the phrase “facilitate their presence” is not defined or

13 clarified anywhere in the Order. Neither does the Order set forth any process for appealing the

14 Secretary’s arbitrary determinations. Actually, of course, the Secretary has no constitutional

15 authority to create new crimes and infractions at all, nor to specify their fines and punishments.

16

As Santa Clara County correctly alleges in its Complaint, based on the vague wording of

17 the Order, this section could reasonably be read to authorize the imposition of fines against any

18 county employee providing an undocumented immigrant with basic services such as medical care.

19 Docket 1 ¶ 6. Taking this vague definition beyond its impact on the County, the phrase

20 “facilitates their presence” could as well be said to apply to any person renting a home or

21 apartment to an undocumented immigrant, providing any form of financial assistance to an

22 undocumented person, or providing any other services from childcare to legal advice.

23

Such a broad and vague prohibition on interacting with undocumented immigrants has a

24 two-fold impact on immigrants lawfully present in the United States.

25

First, by threatening anyone who unknowingly aids an undocumented immigrant, the

26 Order almost compels discrimination against immigrants. Workers lawfully in the United States

27 can expect to encounter widespread refusals to provide them with services absent proof of their

28 documentation status, as service providers fear otherwise being subjected to unspecified fines and

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1 penalties. Rather than being treated fairly and equally in their new homes, lawfully-present

2 immigrants may well find others loathe to interact with them absent proof of their lawful

3 presence. “Let me see your papers” may no longer be a trope from old movies, but a

4 contemporary means of degradation of those deemed suspect based on their apparent national

5 origin – and a sign of what feels to many like the police state.

6

Most Americans cannot imagine an existence in which we are asked to prove our legal

7 status every time we seek medical care, child care, or even dinner at a restaurant, and in which

8 such a regulation provides a cover for discriminatory challenges. Indeed, the idea of this sort of

9 second class citizenship offends fundamental American values and invokes memories of some of

10 the darkest eras in our history. But so long as people can be subjected to unspecified fines and

11 penalties for even inadvertently aiding an undocumented person, at the unfettered discretion of

12 immigration officials, that could become the reality for many immigrants lawfully working in

13 America.11 Among the deep issues this raises, it means that technology companies cannot

14 realistically attract talented workers to the United States if they expect to face this sort of

15 treatment.

16

Second, immigrants lawfully in the United States will also have reason to fear being

17 subjected to fines or penalties for interacting with people from their home country, regardless of

18 their knowledge of that person’s status. All across the country, while integrating into American

19 life, immigrants also maintain their own traditions in part through connections with other persons

20 from their native countries. Through churches, community centers, and other groups many

21 immigrants find communities comprised of people who have lived through a similar journey and

22 who share a similar background. But the Order threatens the very existence of such communities

23 by threatening every member if a single member is undocumented and the community may be

24 deemed somehow to have “facilitated” that person’s presence in the United States.

25

Not only could a church that provides food or other basic necessities to an undocumented

26 11 This discrimination and policing of documentation status appears to have already begun, as
four Latina women recently reported that a server at a California restaurant refused to provide
27 them with dinner until they provided proof of residency. See Cleve Wootson, A California
Waiter Refused to Serve 4 Latina Customers Until He Saw Proof of Residency, Washington Post,
28 March 19, 2017.

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ATTORNEYS AT LAW SAN FRANCISCO

1 immigrant be subject to a fine of unspecified size under the Order, so too could any person who

2 contributed to that church under the theory that they facilitated the presence of undocumented

3 immigrants by providing financial support to an organization that supports them. And the

4 existence of such a legal standard may well be used as an excuse for surveillance of churches and

5 community resources. This limitless policing of those who would provide assistance to the

6 undocumented will drive fear into all immigrant communities, including their members who are

7 lawfully present in the United States.

8

Finally, it bears noting that this sort of strict liability, guilt-by-association is essentially

9 unprecedented in the American legal system. While the law may appropriately bar knowingly

10 aiding or abetting the commission of crimes, it does not criminalize the unknowing provision of

11 aid to a person that has committed a crime.

12

Citizens can offer aid, serve food, or provide medical assistance to those who, it turns out,

13 have committed even the most heinous of crimes without fear that they will be subjected to fines

14 or penalties. When interacting with an undocumented person – or someone of apparently similar

15 ancestry – is penalized, the government effectively ensures that all immigrants will be treated

16 with fear and mistrust, and that discrimination on account of national origin will be perpetuated

17 under color of law.

18

CONCLUSION

19

The Order promotes values at odds with those of America society, and antithetical to the

20 values, culture and practices of the technology industry, both here and nationally, and to the

21 values of the communities in which the tech industry is embedded. The Order also defies

22 constitutional standards and imperils the safety, efficacy and well-being of the technology

23 industry and of communities that seek to uphold the values of openness, tolerance, and

24 inclusiveness. Amici therefore respectfully request that the Court grant the Counties’ motions and

25 enjoin enforcement of the Order on a nationwide basis.

26

27

28

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1 Dated: March 22, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BRIEF OF AMICI CURIAE TECH. COS. ISO PLFS.’ MTN. FOR PRELIMINARY INJUNCTION

FENWICK & WEST LLP
By: /s/ Kathryn J. Fritz Kathryn J. Fritz FENWICK & WEST LLP San Francisco, CA
Mitchell Zimmerman Patrick E. Premo FENWICK & WEST LLP Mountain View, CA
Annasara G. Purcell FENWICK & WEST LLP Seattle, WA
MEGHAN RHEA WG+R LAW GROUP, P.C. Alameda, CA
Attorneys for Amici Curiae Technology Companies

13

CASE NO. 3:17-CV-00574-WHO

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 39-2 Filed 03/22/17 Page 18 of 19
EXHIBIT 1

Case 3:17-cv-00485-WHO Document 39-2 Filed 03/22/17 Page 19 of 19

1. Ampush Media, Inc. 2. Appboy Inc. 3. Azavea 4. Checkr, Inc. 5. Chegg Inc. 6. Eventbrite 7. General Assembly 8. IDEO 9. Knotel 10. Managed by Q Inc. 11. Mapbox 12. Marin Software 13. Minted LLC 14. SugarCRM Inc. 15. Work & Co

EXHIBIT 1

Case 3:17-cv-00485-WHO Document 39-3 Filed 03/22/17 Page 1 of 2
EXHIBIT B

Case 3:17-cv-00485-WHO Document 39-3 Filed 03/22/17 Page 2 of 2

1. Ampush Media, Inc. 2. Appboy Inc. 3. Azavea 4. Checkr, Inc. 5. Chegg Inc. 6. Eventbrite 7. General Assembly 8. IDEO 9. Knotel 10. Managed by Q Inc. 11. Mapbox 12. Marin Software 13. Minted LLC 14. SugarCRM Inc. 15. Work & Co

EXHIBIT B

 
 Case 3:17-cv-00485-WHO Document 40 Filed 03/22/17 Page 1 of 4

1 LOUISE H. RENNE (SBN 36508) JONATHAN V. HOLTZMAN (SBN 99795)
2 LINDA M. ROSS (SBN 133874) lross@publiclawgroup.com
3 RENNE SLOAN HOLTZMAN SAKAI LLP 1220 Seventh Street, Suite 300
4 Berkeley, CA 94710 Ph. (510) 995-5800
5 Fx. (415) 678-3838

6 Attorneys for Amici Curiae

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9 CITY AND COUNTY OF SAN FRANCISCO, Case No. 17-cv-00485-WHO

Case No. 17-cv-00574-WHO

10

Plaintiff,

(Related cases)

11 v.
12 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,
13 JOHN F. KELLY, Secretary of United States Department of Homeland Security,
14 JEFFERSON B. SESSIONS, Attorney General of the United States, DOES 1-100,
15 Defendants
16
17
18

MOTION BY CALIFORNIA CITIES AND COUNTIES FOR LEAVE TO FILE AS AMICI CURIAE IN SUPPORT OF MOTIONS FOR PRELIMINARY INJUNCTION FILED BY COUNTY OF SANTA CLARA AND CITY AND COUNTY OF SAN FRANCISCO
MOTION FILED BY COUNTY OF ALAMEDA, CITY OF BERKELEY, CITY OF DAVIS, CITY OF EAST PALO ALTO, CITY OF FREMONT, COUNTY OF MARIN, COUNTY OF MONTEREY, CITY OF MOUNTAIN VIEW, CITY OF OAKLAND, CITY OF RICHMOND, CITY OF SALINAS, CITY OF SAN JOSE, CITY OF SANTA CRUZ, AND CITY OF SANTA ROSA

19 COUNTY OF SANTA CLARA,

20

Plaintiff,

21 v.

Date: April 12, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick, Ctrm. 2
450 Golden Gate Avenue San Francisco, CA 94102

22 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY, in his
23 official capacity as Secretary of the United States Department of Homeland Security,
24 DANA J. BOENTE, in his official capacity as Acting Attorney General of the United States,
25 MARK SANDY, in his official capacity as Acting Director of the Office of Management
26 and Budget, and DOES 1-50,

27

Defendants

Action Filed: January 31, 2017
Date: April 5, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick, Ctrm. 2
450 Golden Gate Avenue San Francisco, CA 94102
Action Filed: February 3, 2017

28

CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40 Filed 03/22/17 Page 2 of 4

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1 I. INTRODUCTION

2

This motion is brought by the following California cities and counties: County of Alameda, City

3 of Berkeley, City of Davis, City of East Palo Alto, City of Fremont, County of Marin, County of

4 Monterey, City of Mountain View, City of Oakland, City of Richmond, City of Salinas, City of San Jose,

5 City of Santa Cruz, and City of Santa Rosa. These cities and counties respectfully move for leave to file

6 an amicus curiae brief in support of the motions for preliminary injunction filed by the City and County

7 of San Francisco and the County of Santa Clara. A copy of the proposed brief is attached as Exhibit A

8 to this motion. The moving parties do not oppose the filing of this brief.

9

The amicus brief will assist the Court in concluding that a nationwide injunction is needed to halt

10 the Trump administration’s program to defund “sanctuary jurisdictions.” Amici’s brief demonstrates that

11 all California cities and counties, and those nationwide, are in the same position as the moving parties.

12 All rely on federal funding to provide services to their most vulnerable populations. And all are at risk of

13 being targeted as “sanctuary jurisdictions,” and denied funds, under the lawless and arbitrary mechanism

14 established by the Executive Order.

15 II. IDENTITY AND INTEREST OF THE AMICUS CURIAE

16

Amici curiae are California cities and counties that rely on federal funds to provide programs that

17 benefit their populations, particularly their most vulnerable residents. Amici are developing balanced

18 budgets for fiscal year 2017-2018, which must be in place by June 30, 2017. These budgets depend on

19 significant federal funding to provide basic services for residents. Accordingly, policymakers in amici

20 curiae jurisdictions must know now whether federal grants will continue. Because most federal grants

21 require amici to first spend funds, and be reimbursed later, amici are particularly vulnerable to any cut in

22 grant funding.

23

Amici curiae are threatened by President Donald J. Trump’s January 25, 2017 Executive Order

24 “Enhancing Public Safety in the Interior of the United States” (“the Order” or “EO”), which authorizes

25 the Attorney General and Secretary of Homeland Security to ensure that “sanctuary jurisdictions” are not

26 “not eligible to receive Federal grants.” (EO, Section 9(a).) The fear of losing critical federal grants is

27 well founded. The Order broadly directs the Attorney General to take action against “any entity” that

28 “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” (EO,
1 CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40 Filed 03/22/17 Page 3 of 4

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1 Section 9(a).) In fact, Department of Homeland Security has already identified certain states, cities and

2 counties throughout the country as sanctuary jurisdictions and potential targets of the Order.

3

Some signers of the attached brief have explicit policies that limit cooperation with federal

4 immigration enforcement, consistent with state and federal law. Other signers may have no explicit

5 policy at all, but nonetheless may end up on the federal government’s list of “sanctuary” jurisdictions.

6 Given the breadth of the Executive Order, all are in danger of losing federal funds based upon an

7 arbitrary determination that they have “a practice that prevents or hinders the enforcement of Federal

8 law.” (EO, Section 9(a).)

9 III. REASONS WHY MOTION SHOULD BE GRANTED

10

A. This Court Has Broad Discretion To Permit An Amicus Curiae Brief

11

Federal District Courts have broad discretion to permit the filing of an amicus curiae brief.

12 Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). District Courts “frequently welcome” an amicus

13 curiae brief when the amicus has “unique information or perspective that can help the court beyond the

14 help that the lawyers for the parties are able to provide.” Sonoma Falls Developers, LLC v. Nevada Gold

15 & Casinos, Inc., 272 F.Supp.2d 919, 925 (N.D. Cal. 2003) (quoting Ryan v. Commodity Futures Trading

16 Comm’n, 125 F. 3d 1062 1064 (7th Cir. 1997). Amicus curiae participation is particularly appropriate

17 where the ramifications of the decision extend beyond the current parties. NGV Gaming, Ltd. V.

18 Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 1067 (N.D. Cal. 2005).

19

B. The Amicus Curiae Brief Will Aid The Court In Assessing The Need For A

Nationwide Injunction

20

21

The Court should exercise its discretion to permit amici California cities and counties to file the

22 attached amici curiae brief. Amici are familiar with the scope of the arguments presented by the parties

23 and do not unduly repeat those arguments. Instead, amici present additional factual information about

24 themselves and cities and counties nationwide that supports issuance of a nationwide injunction.

25

Amici demonstrate that other jurisdictions, like the moving parties, rely on federal funding to

26 provide for the well-being of their most vulnerable residents. Federal grants to cities support the

27 following crucial services: Section 8 housing vouchers, renovation and repair of low income housing,

28 community centers, food banks, Head Start programs, workforce development, public transit,
2 CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40 Filed 03/22/17 Page 4 of 4

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1 infrastructure, emergency preparedness, and more. Federal grants to counties support safety net

2 programs for health and welfare. Because most federal grants require amici to first spend funds, and be

3 reimbursed later, amici are particularly vulnerable to any cut in grant funding.

4

Amici demonstrate that other jurisdictions, like the moving parties, follow sound and legal

5 policies that limit local enforcement of federal immigration laws. And amici demonstrate that the Trump

6 administration is targeting jurisdictions nationwide, not based on any violation of federal law, but based

7 on adherence to these lawful policies. On March 20, 2017, the Department of Homeland Security

8 demonstrated the national sweep of the Executive Order when it issued a report entitled “Declined

9 Detainers, Public Safety Advisory.” (https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf.)

10

The first of a promised series of weekly reports, the Declined Detainer not only includes lists of

11 jurisdictions that have denied detainers but also includes a “Table of Jurisdictions that have Enacted

12 Policies which Limit Cooperation with ICE.” The lists are nationwide. Some amici are on the lists.

13 Others are likely to be added. The report states that the number of reported jurisdictions will increase as

14 ICE field offices resume issuing detainers to jurisdictions that previously refused to honor them.

15

The purpose of the Executive Order and the Department’s weekly list is blatant – an illegal

16 attempt, in violation of the Fourth and Tenth Amendments, to coerce cities and counties nationwide into

17 assisting in the enforcement of federal immigration law.

18 IV. CONCLUSION

19

For these reasons, amici curiae respectfully request that the Court grant leave to file the amici

20 curiae brief attached hereto as Exhibit A.

21 Dated: March 22, 2017

RENNE SLOAN HOLTZMAN SAKAI LLP

22

23

By: /s/ Linda M. Ross

24

LINDA M. ROSS

25

Attorneys for Amici Curiae

26

27

28
3 CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40-1 Filed 03/22/17 Page 1 of 18

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1 LOUISE H. RENNE (SBN 36508) JONATHAN V. HOLTZMAN (SBN 99795)
2 LINDA M. ROSS (SBN 133874) lross@publiclawgroup.com
3 RENNE SLOAN HOLTZMAN SAKAI LLP 1220 Seventh Street, Suite 300
4 Berkeley, CA 94710 Ph. (510) 995-5800
5 Fx. (415) 678-3838

6 Attorneys for Amici Curiae

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 CITY AND COUNTY OF SAN FRANCISCO, Case No. 17-cv-00485-WHO

Case No. 17-cv-00574-WHO

12

Plaintiff,

(Related cases)

13 v.
14 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,
15 JOHN F. KELLY, Secretary of United States Department of Homeland Security,
16 JEFFERSON B. SESSIONS, Attorney General of the United States, DOES 1-100,
17 Defendants
18 COUNTY OF SANTA CLARA,
19 Plaintiff,
20 v.
21 DONALD J. TRUMP, President of the United
22 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United
23 States Department of Homeland Security, DANA J. BOENTE, in his official capacity as
24 Acting Attorney General of the United States, MARK SANDY, in his official capacity as
25 Acting Director of the Office of Management and Budget, and DOES 1-50,
26 Defendants
27

BRIEF OF AMICI CURIAE CALIFORNIA CITIES AND COUNTIES – COUNTY OF ALAMEDA, CITY OF BERKELEY, CITY OF DAVIS, CITY OF EAST PALO ALTO, CITY OF FREMONT, COUNTY OF MARIN, COUNTY OF MONTEREY, CITY OF MOUNTAIN VIEW, CITY OF OAKLAND, CITY OF RICHMOND, CITY OF SALINAS, CITY OF SAN JOSE, CITY OF SANTA CRUZ, AND CITY OF SANTA ROSA
Date: April 12, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick, Ctrm. 2
450 Golden Gate Avenue San Francisco, CA 94102
Action Filed: January 31, 2017
Date: April 5, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick, Ctrm. 2
450 Golden Gate Avenue San Francisco, CA 94102
Action Filed: February 3, 2017

28

BRIEF OF AMICI CURIAE CALIFORNIA CITIES AND COUNTIES – Case Nos. 17-cv-00485-WHO and 17-cv-00574WHO

Case 3:17-cv-00485-WHO Document 40-1 Filed 03/22/17 Page 2 of 18

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1

TABLE OF CONTENTS

2

Page(s)

3 I. INTRODUCTION ...........................................................................................................................1

4 II. ARGUMENT ...................................................................................................................................2

5

A. The Executive Order Threatens Services Vital To Amici’s Residents................................2

6

1. The Executive Order Applies To All Federal Grants ..............................................2

7

2. Cities And Counties Rely On Federal Grants To Fund Vital Programs ..................2

8

B. The Executive Order Targets California Cities And Counties ............................................5

9

1. California Cities And Counties Must Act To Protect All Residents .......................5

10

2. California Has Taken The Lead In Protecting The Rights Of

Undocumented Individuals ......................................................................................6 11

C. The Executive Order Purports To Enforce 8 U.S.C. Section 1373, But Is in Fact A

12

Lawless Mandate Lacking Ascertainable Standards............................................................7

13

1. The Executive Order Grants Standardless Discretion To Define “Sanctuary

Jurisdictions”............................................................................................................7 14

2. The Executive Order Is Unconstitutionally Vague ..................................................8 15

3. The Department of Homeland Security Illegally Targets Jurisdictions That

16

Deny Detainers.........................................................................................................8

17

4. The Federal Government Has Illegally Attempted To Turn Section 1373

Into An Affirmative Obligation .............................................................................10 18

D. The Executive Order Is An Attempt To Coerce Local Government .................................10 19

1. The Executive Order Violates The Tenth Amendment .........................................10 20

2. The Executive Order Attempts To Wield Authority That Even Congress

21

Does Not Have .......................................................................................................11

22 III. CONCLUSION..............................................................................................................................12

23

24

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TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Galarza v. Szalczyk,

5

745 F.3d 634 (3d Cir. 2014)....................................................................................................................6

6 James Lacroix v. Daniel Junior, Case No. F17-376, F17-1770, Circuit Court of The Eleventh Judicial Circuit

7

In and for Miami-Dade County, Florida ...............................................................................................11

8 Mercado v. Dallas County, No. 3:14-CV-3481-D 2017 WL 169102 (N.D. Texas, Jan. 17, 2017)....................................................7
9

10

Miranda-Olivares v. Clackamas Cty., No.3:12-cv-02317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014)..................................................7, 12

11 Morales v. Chadbourne,

12

793 F.3d 208 (1st Cir. 2015).................................................................................................................12

13 N.Y. v. United States, 505 U.S. 144 (1992)..............................................................................................................................12
14

Nat’l Fed’n of Indep. Bus. v. Sebelius,

15

132 S. Ct. 2566 (2012)....................................................................................................................11, 12

16 Printz v. United States,

17

521 U.S. 898 (1997)..............................................................................................................................10

18 S. Dakota v. Dole,

483 U.S. 203 (1987)..............................................................................................................................11 19

United States v. Williams,

20

553 U.S. 285 (2008)................................................................................................................................8

21 Statutes

22 8 Code of Federal Regulations

23

Section 287.7...........................................................................................................................................6

24 8 United States Code
Section 1373............................................................................................................................7, 9, 10, 11 25

California Government Code

26

Section 7282........................................................................................................................................5, 6

27

Section 7282.5.....................................................................................................................................5, 6

Section 7283.1.........................................................................................................................................6

28

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Page(s)

2 Connecticut Public Law Public Act No. 13-155 ............................................................................................................................6
3

4 Constitutions

5 United States Constitution Fourth Amendment ........................................................................................................................passim

6 United States Constitution

7

Tenth Amendment ..........................................................................................................................10, 11

8

9

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Amici file this brief in support of the motions for preliminary injunction filed by the City and

2 County of San Francisco and the County of Santa Clara.

3 I. INTRODUCTION

4

California cities and counties are suffering irreparable harm from President Donald J. Trump’s

5 January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States” (“the

6 Order” or “EO”), which directs federal authorities to deny federal funds to “sanctuary jurisdictions.” The

7 Executive Order sweeps far beyond existing law and is beyond the power of the President to issue. It

8 impermissibly requires cities and counties to choose whether to abandon sound and lawful policies or

9 lose federally funded programs.

10

This is budget season. Cities and counties must have balanced budgets in place by June 30 for a

11 fiscal year that runs from July 2017 through June 2018. These budgets rely heavily on federal grant

12 funds. For many cities, federal funds provide the lion’s share to support low cost housing, public transit,

13 community centers, job training, infrastructure improvements and other programs. For counties, federal

14 funds provide a safety net for health care and other human services. Generally, cities and counties must

15 spend on programs first and then seek federal reimbursement.

16

The fear of losing federal funds – or worse, not receiving reimbursement for services already

17 provided – is well founded. Among other things, the Executive Order broadly directs the Attorney

18 General to take action against “any entity” that “has in effect a statute, policy, or practice that prevents or

19 hinders the enforcement of Federal law.” Department of Homeland Security reports already identify

20 states, cities and counties throughout the country as potential sanctuary jurisdictions. This week, as

21 directed by the Executive Order, the Department began issuing “tables” of jurisdictions “that have

22 Enacted Policies which Limit Cooperation with ICE.”

23

Some signers of this brief have explicit policies that limit cooperation with federal immigration

24 enforcement, consistent with state and federal law. Others may have no explicit policy at all, but

25 nonetheless may end up on the federal government’s list of “sanctuary” jurisdictions. Given the breadth

26 of the Executive Order, all face danger of losing federal funds based upon an arbitrary determination that

27 they have “a practice that prevents or hinders the enforcement of Federal law.”

28

California cities and counties provide vital services – often to vulnerable populations. They are

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1 already under great financial strain due to a limited ability to raise taxes under Propositions 13 and 218,

2 and the 2008 “Great Recession.” They are the front line of government’s actual provision of services to

3 individuals, providing fire, police, paramedic services, libraries, roads, water and sewer services, public

4 works, transit, social services, health care, and parks. They exist not for their own sake or for the sake of

5 shareholders, but for the sake of residents whose welfare they are charged with protecting and

6 nourishing.

7

Even a delay in federal reimbursement would require immediate and drastic reductions in these

8 services – or possibly bankruptcy in some cases. The Department of Justice argues that the request for

9 preliminary injunction is “premature” because the government has not actually denied funds. But the

10 Executive Order is not a speech or an idle threat. It is illegal as written and forces cities and counties to

11 make a choice now that the federal government has no right to demand. The President had no authority

12 to issue the Executive Order. The Departments of Justice and Homeland Security have no authority to

13 carry out its instructions. Any action under the Executive Order, however preliminary, is illegal and

14 subject to injunction.

15 II. ARGUMENT

16

A. The Executive Order Threatens Services Vital To Amici’s Residents

17

1. The Executive Order Applies To All Federal Grants

18

The Executive Order applies to all federal grant funds, including those already awarded.

19

Section 9(a) directs the Attorney General and Secretary [of Homeland Security] to ensure that

20 “sanctuary jurisdictions” are “not eligible to receive Federal grants ….” The only exception is for grants

21 “deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” [Emphasis

22 added.] Section 9(c) directs the Director of the Office of Management and Budget to provide

23 “information on all federal grant money that currently is received by any sanctuary jurisdiction.”

24 [Emphasis added.]

25

2. Cities And Counties Rely On Federal Grants To Fund Vital Programs

26

Cities and counties across the nation rely on federal funds to provide programs that benefit their

27 populations, particularly their most vulnerable residents. When the federal government threatens to

28 withhold funds, the federal government does not punish cities and counties; it punishes people.

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Cities rely on federal funds to provide Section 8 housing vouchers, low income housing

2 renovation and repair, community centers, senior services, infrastructure improvements and community

3 policing. Counties provide crucial health and other safety net services. For many programs, an end to

4 federal funding will mean the end of the program.

5

Generally, cities and counties must first expend funds on these programs and then be reimbursed.

6 This puts them particularly at risk if the federal government denies funding. They must choose whether

7 to maintain legal policies, which encourage cooperation with law enforcement by undocumented

8 residents, or risk the potentially catastrophic consequence of being denied reimbursement for services

9 already provided. The following are some examples of funding received by amici from the Federal

10 government:

11

Housing. The Department of Housing and Urban Development (HUD) provides funding

12 nationwide for rent vouchers, low income housing, renovation and repair of low income housing, and

13 emergency shelter. For example, in 2016-2017, the Department provided grants of over $25 million to

14 the City of Richmond and $20 million to the City of Santa Rosa. This is a nationwide program, with

15 funds provided to cities and counties throughout the country. Without these funds, low income residents

16 would be without affordable and decent housing.

17

Community Development Block Grants. HUD also provides Community Development Block

18 Grants (CDBG) to cities to support facilities that serve low and moderate income people. These facilities

19 include senior centers, child care centers, homeless shelters, domestic violence shelters and food banks.

20 These grants are significant. In 2016-2017, the City of Oakland received $7.1 million in an annual

21 recurring CDBG grant, and $6.6 million in a separate HUD grant for emergency shelters, transitional

22 housing and housing for persons with AIDS. In 2016-2017, the City of Fremont received a $1.65 million

23 CDBG grant. Without CDBG and HUD grant funds, centers may close.

24

Human Services. The Department of Health and Human Services provides funds to cities for

25 social services programs including Head Start, caregiver and health services for the aging, and others.

26 For example, in 2016-2017, Oakland received a total grant of $17.9 million. The City of Fremont

27 received a grant of $1.1 million in funds for those purposes.

28

Workforce Development. The Workforce Innovation and Opportunity Act provides assistance

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1 and support to youth in attaining a high school diploma, an industry standard certificate, or a post-

2 secondary degree. The programs also assist with high school level reading and math skills in order to

3 prepare for post-secondary education or the workforce. For 2016-2017, Oakland received a grant of $4.1

4 million.

5

Public Transit. In the City of Santa Rosa, during fiscal year 2016-2107, the federal government

6 provided over $2 million in funds to support public transit, including operator salaries, fuel, maintenance,

7 purchase of buses and engines, and improvements. This amount was 14.4% of the budget for transit

8 operations.

9

Transportation Infrastructure. The Department of Transportation provides funds to cities for

10 highway construction and repair. For example, in the City of Fremont, during fiscal year 2016-2017, the

11 Department provided $7.1 million towards road and bridge maintenance and repair. These funds are

12 crucial to resurfacing roads and replacing aging bridges that are vulnerable to earthquakes. In 2013, the

13 City of Salinas received an award of $3.3 million for airport improvement.

14

Emergency Services. The Department of Homeland Security provides funds to support staffing

15 for adequate Fire and Emergency Response in the event of natural disasters such as earthquake,

16 hurricane, or flood, or in the event of terrorist attack.

17

Community Oriented Policing. The Department of Justice provides funds to support

18 community policing as part of the COPS program. These funds pay for additional police officers to build

19 trust in communities by engaging in community patrol, educational programs and school outreach.

20

Edward Byrne Grants. The Department of Justice provides grants to support law enforcement

21 for technical assistance, training, purchase of equipment and supplies, information systems, and criminal

22 justice-related research and evaluation.

23

Counties. The federal funding provided to counties is described in the briefs and declarations

24 filed by the County of Santa Clara and the City and County of San Francisco. In California, counties

25 provide crucial federally-funded safety-net services. For example, County of Alameda’s budget for fiscal

26 year 2016-2017 includes $515 million from federal aid, 19% of its General Fund budget. Federal aid

27 supports the county’s healthcare, child welfare, and foster care services, as well as other services and

28 programs.

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1

B. The Executive Order Targets California Cities And Counties

2

1. California Cities And Counties Must Act To Protect All Residents

3

According to a Pew Research Center study, California has an estimated 2.35 million

4 undocumented residents. Other studies show high percentages of foreign born residents in California’s

5 cities and counties. For example, 46% of Fremont’s population is foreign born.

6

Because significant percentages of the population are immigrants, law enforcement must be able

7 to work successfully with people in all communities. If residents are afraid to come forward and report

8 crime, entire communities become prey to intimidation and violence.

9

The California “TRUST” Act warned that local enforcement of federal immigration laws may

10 “harm community policing efforts because immigrant residents who are victims of or witnesses to crime,

11 including domestic violence, are less likely to report crime or cooperate with law enforcement when any

12 contact with law enforcement could result in deportation.” (Assem. Bill 4, 2013-2014 Reg. Sess., sec.

13 1(d) (Cal. 2013); findings for Transparency and Responsibility Using State Tools Act [“TRUST” Act],

14 Cal. Gov. Code 7282-7282.5,)

15

In 2007, Oakland enacted a resolution that explained “enforcement of civil immigration laws by

16 local police agencies” undermines “the trust and cooperation with immigrant communities,” increases

17 “the risk of civil liability due to the complexity of civil immigration laws and the lack of training and

18 expertise of local police on civil immigration enforcement” and detracts “from the core mission of the

19 Oakland Police Department to create safe communities.” (Oakland City Council Resolution No. 80584,

20 dated May 15, 2007; see also Resolution No. 81310, dated May 20, 2008; Resolution No. 86490, dated

21 November 29, 2016.)

22

As recently explained by the Chief of the Richmond Police Department in an open letter to the

23 community:

24

The RPD does not enforce federal immigration laws --- doing so would harm

community trust, and run counter to our various crime prevention and

25

reduction efforts. Our approach has long contemplated the reality that

26

Richmond has a substantial undocumented population whose members tend to be targets of certain types of criminal victimization, because most criminal

27

offenders are “rational” in their target selection for the reason that they want

to avoid being identified and reported to police. Perpetrators assume that

28

certain targets for victimization will not report incidents to the police.

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(Letter to the Community, Allwyn Brown, Chief of Police, Richmond Police Department.)

2

Similar policies lie behind the decision of many communities to focus their resources on local law

3 enforcement, not enforcement of federal immigration laws.

4

2. California Has Taken The Lead In Protecting The Rights Of Undocumented

Individuals

5

6

California is a national leader in protecting the health, safety and established legal rights of

7 undocumented individuals. The state was among the first to recognize that ICE immigration detainer

8 holds threaten the Fourth Amendment rights of the undocumented, a proposition now confirmed by the

9 federal courts.

10

Federal immigration authorities issue civil “detainers,” which request that a state or local jail

11 facility hold an individual for 48 hours after the individual’s release date to give ICE time to arrest the

12 individual for violation of the immigration laws. (8 C.F. R. 287.7.) But these “detainers” or “holds” are

13 only requests; there is no legal obligation to honor them. Galarza v. Szalczyk, 745 F.3d 634, 640-643 (3d

14 Cir. 2014) (“immigration holds are requests and not mandatory orders”).

15

California’s “TRUST” Act, requires that California cities and counties abide by certain

16 safeguards when deciding whether to honor an ICE detainer request. For example, the Act prohibits

17 detaining individuals past their release date unless the individual has a record that involves a serious or

18 violent felony. (Cal. Gov. Code §§ 7282-7282.5.) California also enacted the “TRUTH” Act, which

19 requires local law enforcement agencies to provide persons in custody, prior to any interview with ICE,

20 with information on their rights. Law enforcement must provide “a written consent form that explains

21 the purpose of the interview, that the interview is voluntary, and that he or she may decline to be

22 interviewed or may choose to be interviewed only with his or her attorney present.” (Cal. Gov. Code

23 7283.1(a); Transparent Review of Unjust And Holds Act [“TRUTH” Act].)1

24

These laws bind all cities and counties whether or not they consider themselves to be “sanctuary

25 jurisdictions.” In addition, a number of California cities and counties outright prohibit compliance with

26

27 1 Other jurisdictions also have enacted limits on compliance with federal immigration detainers. See,

28

e.g., “An Act Concerning Civil Immigration Detainers,” Conn. Public Law 13-155; “District Compliance with Federal Immigration Detainers,” Code of the District of Columbia, § 24-211.07.

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1 immigration detainers. This prohibition is consistent with federal law. Local jails may violate the Fourth

2 Amendment if they hold individuals beyond their release date based on an immigration detainer. See

3 Miranda-Olivares v. Clackamas Cty.,No.3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or. Apr.

4 11, 2014) (finding Fourth Amendment violation); Mercado v. Dallas County, No. 3:14-CV-3481-D 2017

5 WL 169102 (N.D. Texas, Jan. 17, 2017) (claim stated for violation of Fourth Amendment).

6

C. The Executive Order Purports To Enforce 8 U.S.C. Section 1373, But Is in Fact A

Lawless Mandate Lacking Ascertainable Standards

7

8

Under the guise of enforcing Section 1373, the Executive Order gives standardless discretionary

9 authority to the Attorney General and Secretary of Homeland Security, in the words of the President, to

10 “punish” alleged “sanctuary jurisdictions.”

11

1. The Executive Order Grants Standardless Discretion To Define “Sanctuary

Jurisdictions”

12

13

The Executive Order defines “sanctuary jurisdictions” as those that “willfully refuse to comply

14 with 8 U.S.C. 1373.” Section 1373 is very narrow. It only prohibits state and local governments from

15 restricting communications by their personnel to federal immigration authorities about “citizenship or

16 immigration” status.2 But compliance with Section 1373 does not eliminate the risk of ending up on the

17 Attorney General’s list.

18

The Executive Order grants the Attorney General broad authority to “take appropriate

19 enforcement action against any entity” that “has in effect a statute, policy, or practice that prevents or

20 hinders the enforcement of Federal law.” (EO, Section 9(a).) The Order also equates “sanctuary

21 jurisdictions” with any jurisdiction that “ignored or otherwise failed to honor any detainers with respect

22 to such aliens.” (EO, Section 9(b).)

23

This text illegally grants unfettered authority to the Attorney General and Secretary of Homeland

24 Security to identify and punish “sanctuary jurisdictions.” Moreover, the Executive Order, coupled with

25
26 2 Section 1373(a) states: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government
27 entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
28

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1 the government’s actions to date, demonstrates an intent to punish jurisdictions for legally protected

2 conduct – not honoring detainers or not assisting in federal immigration enforcement.

3

2. The Executive Order Is Unconstitutionally Vague

4

Santa Clara correctly argues that the Executive Order is unconstitutionally vague because it (1)

5 fails to provide a person of ordinary intelligence fair notice of what is prohibited,” or (2) “is so

6 standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v.

7 Williams, 553 U.S. 285, 304 (2008). The Executive Order grants the Attorney General and Secretary

8 with undefined and unlimited discretion to determine who is a “sanctuary jurisdiction” and deny federal

9 funds. It is illegal on its face.

10

3. The Department of Homeland Security Illegally Targets Jurisdictions That

Deny Detainers

11

12

Not only is the Executive Order illegally vague, the guidance it does provide illegally targets

13 jurisdictions, like California, that limit compliance with detainers. Indeed, the only way to stay off the

14 list of “sanctuary jurisdictions” may be to violate the Fourth Amendment by honoring immigration

15 detainers.

16

For years the Department of Homeland Security has been identifying jurisdictions that fail to

17 honor civil immigration detainers by compiling the “Declined Detainer Outcome Report.” The

18 Executive Order directs the Department to “utilize” the Report and issue weekly lists of jurisdictions

19 “that ignored or otherwise failed to honor any detainers with respect to such aliens.” (EO, Section 9(b).)

20

On March 20, 2017, the Department of Homeland Security implemented the Executive Order by

21 issuing a report entitled “Declined Detainers, Public Safety Advisory.”

22 (https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf.) The report states that it will be “issued

23 weekly to highlight jurisdictions that choose not to cooperate with ICE detainers or requests for

24 notification, therefore potentially endangering Americans.” (Id. at 1.) Section II of the report is a “Table

25 of Jurisdictions that have Enacted Policies which Limit Cooperation with ICE.” (Id. at 23.) Section IV

26 of the report suggests that the number of reported jurisdictions will increase as ICE field offices resume

27 issuing detainers to jurisdictions that previously refused to honor them. (Id. at 34.)

28

Historically, the Department of Justice has used the Declined Detainer Reports to identify

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1 jurisdictions that allegedly violated Section 1373. As early as May 31, 2016, the Office of the Inspector

2 General of the Department of Justice (“Inspector General”) responded to a Justice Department request

3 that the Inspector General “investigate the allegations that the jurisdictions reflected in the attached

4 spreadsheet, who are recipients of funding from the Department of Justice, are in violation of 8 U.S.C.

5 Section 1373.” (https://oig.justice.gov/reports/2016/1607.pdf.)3 The “spreadsheet” detailed “Department

6 grants received by over 140 state and local jurisdictions.” (Id.)

7

In conducting the investigation into violations of Section 1373, the Inspector General compared

8 the list of 140 jurisdictions with two ICE reports: (1) an ICE draft “Declined Detainer Outcome Report,”

9 dated December 2, 2014, and (2) an ICE report listing 155 jurisdictions that have “policies that limit or

10 restrict cooperation with ICE and, as of Q3 FY 2015, have declined detainers.” (Id. at 2.)4

11

From this list, the Inspector General “judgmentally selected 10 state and local jurisdictions for

12 further review” including the entire state of California. (Id. at 3, 11.)5 The Inspector General’s report

13 found that each of the 10 jurisdictions “limited in some way the authority of the jurisdictions to take

14 action with regard to ICE detainers.” (Id. at 4.) The report found that those limits “may be inconsistent

15 with at least the intent of Section 1373.” (Id. at 7.)

16

The Executive Order takes this approach one step further and equates violation of Section 1373

17 with refusal to honor immigration detainers. As explained above, there is no legal requirement that any

18 jurisdiction comply with detainers; in fact case law states that compliance may violate the Fourth

19 Amendment. The Declined Detainer Reports are proof of the Executive Order’s illegal approach.

20

21

22

3 Memorandum dated May 31, 2016, to Karol V. Mason, Assistant Attorney General For The Office Of Justice Programs, from Michael E. Horowitz, Inspector General, Subject: Department of Justice Referral

23

of Allegations of Potential Violations of 8 U.S.C. 1373 by Grant Recipients, at 1, https://oig.justice.gov/reports/2016/1607.pdf.

24 4 An earlier October 2014 Declined Detainer Report listed 276 counties in 43 states as having declined detainers. The October 8, 2014 ICE Detainer Report is available on line on the website of the Center For
25 Immigration Studies. (Department of Homeland Security, Law Enforcement Systems & Analysis, Declined Detainer Outcome Report, Prepared on: October 8, 2014,
26 http://cis.org/sites/cis.org/files/Declined%20detainers%20report_0.pdf.)

27

5 The Inspector General selected “the States of Connecticut and California; City of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami-Dade County, Florida; Milwaukee County,

28

Wisconsin; Orleans Parish, Louisiana; New York, New York; and Philadelphia, Pennsylvania.” (Id. at 3.)

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1

4. The Federal Government Has Illegally Attempted To Turn Section 1373 Into

An Affirmative Obligation

2

3

Last year, the Office of Justice Programs of the Department of Justice notified recipients of two

4 grants, the Edward Byrne Memorial Justice Assistance Grant (JAG) and the State Criminal Alien

5 Assistance Program (SCAAP), that grantees must comply with Section 1373.6

6

As part of this notification, the Office of Justice Programs issued “Guidance Regarding

7 Compliance with 8 U.S.C. 1373.” (https://www.bja.gov/funding/8uscsection1373.pdf.) Section 1373

8 does not require local entities to take any affirmative action; it only prohibits restrictions on

9 communicating about “citizenship or immigration status.” The Guidance, however, went beyond Section

10 1373 and required recipients to affirmatively inform personnel that “federal law does not allow any

11 government entity or official to prohibit the sending or receiving of information about an individual’s

12 citizenship or immigration status with any federal, state or local government entity and officials.” (Id.

13 at 1.)

14

The Executive Order expands even further upon Section 1373 because it covers any “statute,

15 policy, or practice that prevents or hinders the enforcement of Federal law.” In other words, compliance

16 with Section 1373 has been expanded to include an undefined list of actions totally within the discretion

17 of the Attorney General.

18

D. The Executive Order Is An Attempt To Coerce Local Government

19

1. The Executive Order Violates The Tenth Amendment

20

The Executive Order is an attempt by the President to conscript local governments into assisting

21 in the enforcement of the federal immigration laws – by honoring detainers and providing information to

22 ICE. As ably demonstrated by the moving parties, this attempt violates the Tenth Amendment.

23

The Tenth Amendment prohibits the federal government from “commandeering” state and local

24 governments to assist enforcement of federal law. Printz v. United States, 521 U.S. 898 (1997). As

25 recently explained by a Florida state court, the nationalization of “every local corrections department

26 6 Letter dated July 7, 2016, from Peter J. Kadzik to John A. Culberson, attaching Memorandum dated
27 July 7, 2016, to Michael Horowitz, Inspector General, U.S. Department of Justice, from Karol V. Mason, Assistant Attorney General, Office of Justice Programs, Subject: “Response: Department of Justice
28 Referral of Allegations of Potential Violations of 8 U.S.C. 1373 by Grant Recipients,” http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_-_doj_letter_to_culberson.pdf. -10-
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1 from coast to coast . . . would be of invaluable aid in the performance of ICE’s regulatory mission.” The

2 court, however, warned: “[T]he price to be paid for that aid was determined, long ago, to be much too

3 high. The price would be the subjugation of state and local governments, the reduction of those

4 governments to mere satrapies of a central government of unlimited and illimitable power.” (James

5 Lacroix v. Daniel Junior, as director of the Miami-Dade County Department of Corrections, Case No.

6 F17-376, F17-1770, Circuit Court of The Eleventh Judicial Circuit In and for Miami-Dade County,

7 Florida, Order on Petition For Writ of Habeas Corpus, March 2017, at 13-14.)

8

Under the Tenth Amendment, the Executive Order may not require cities and counties, as a

9 condition of funding, to assist in the enforcement of federal immigration laws.

10

2. The Executive Order Attempts To Wield Authority That Even Congress Does

Not Have

11

12

The President did not have the authority to issue the Executive Order. Not even Congress has the

13 sweeping authority granted by the Executive Order.

14

Under its spending power, Congress may attach conditions on the receipt of federal funds. Art. I,

15 § 8, cl. 1; Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2601-2602 (2012); S. Dakota v. Dole,

16 483 U.S. 203, 206 (1987). But recognizing the potential for abuse, the United States Supreme Court has

17 imposed limits on Congress’s power. S. Dakota v. Dole, 483 U.S. at 207. The President’s Executive

18 Order violates the limits set by the Court for Congress.

19

First, any conditions on federal funding must be unambiguous so that a state or local jurisdiction

20 knows the rules and the consequences for failure to obey. In a letter dated July 7, 2016, the Attorney

21 General’s Office of Justice Programs stated that agencies in receipt of certain law enforcement grants had

22 agreed to “Standard Assurances” which state: “The applicant hereby assures and certifies compliance

23 with all applicable Federal statutes, regulations, policies, guidelines and requirements.” The reference to

24 “all” federal requirement is not adequate notice that grantees must comply in particular with Section

25 1373. It certainly is not adequate to punish cities and counties for failure to honor immigration detainers.

26

Second, the conditions on funding must be related to the federal interest in the particular national

27 projects or programs that are being funded. “[O]therwise, of course, the spending power could render

28 academic the Constitution’s other grants and limits of federal authority.” N.Y. v. United States, 505 U.S.

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RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1 144, 167 (1992). This requirement prevents the Trump administration from withholding federal funding

2 that is unrelated to immigration or law enforcement concerns. Ironically, those are the only funds not

3 covered by the Executive Order. As demonstrated above, most federal funds go to housing, social

4 services, and transportation – not law enforcement.

5

Third, the conditions on funding may not induce the states to engage in unconstitutional

6 activities. Courts have held that an agency violates an individual’s Fourth Amendment rights when it

7 honors an ICE hold and detains the individual beyond his release date. Miranda-Olivares v. Clackamas

8 Cty., No.3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2015); see also Morales v.

9 Chadbourne, 793 F.3d 208, 215-17 (1st Cir. 2015).

10

Fourth, even Congress may not cross the point at which pressure turns into compulsion. The

11 Executive Order broadly calls for the elimination of all federal grant funds, which constitute a large

12 percentage of local budgets for vital programs. For example, the federal government provides almost all

13 funding for Section 8 housing. For that reason, the Order violates the rule of Sebelius.

14 III. CONCLUSION

15

Without legal authority, the President’s loosely written Executive Order grants carte blanche to

16 the executive branch to deny funding to “sanctuary jurisdictions.” The Department of Justice argues only

17 that the government has not yet acted. But in fact the Order poses an imminent threat to amici – cities

18 and counties throughout California. The Order improperly forces their local officials to decide now

19 between continuing policies essential to protecting their communities or succumbing to the unauthorized

20 threats of the President. The President has no right to make this demand.

21 Dated: March 22, 2017

22

RENNE SLOAN HOLTZMAN SAKAI LLP

23

24

By: /s/ Linda M. Ross

25

LINDA M. ROSS

26

Attorneys for Amici Curiae

27

28

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BRIEF OF AMICI CURIAE CALIFORNIA CITIES AND COUNTIES – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40-1 Filed 03/22/17 Page 17 of 18

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1

Additional Counsel for Amici Curiae

2

3 DONNA R. ZIEGLER

County Counsel, County of Alameda 4 Office of the County Counsel

5

1221 Oak Street, Suite 450 Oakland, CA 94612

6 Ph. (510) 272-6700 Email: donna.ziegler@acgov.org

7

Attorney for County of Alameda 8

ZACH COWAN 9 City Attorney, City of Berkeley
10 Berkeley City Attorney’s Office 2180 Milvia Street
11 Berkeley, CA 94701 Ph. (510) 981-6950
12 Email: zcowan@ci.berkeley.ca.us

13 Attorney for City of Berkeley
14 HARRIET STEINER
15 City Attorney, City of Davis Best Best & Krieger, LLP
16 500 Capitol Mall, Ste. 1700 Sacramento, CA 95814
17 Ph. (916) 551-2821 18 Email: Harriet.Steiner@bbklaw.com

HARVEY LEVINE Fremont City Attorney City Attorney’s Office 3300 Capitol Ave., Bldg. A Fremont, CA 94538 Ph. (510) 284-4030 Email: HLevine@fremont.gov
Attorney for City of Fremont
BRIAN E. WASHINGTON County Counsel, County of Marin Office of the County Counsel 3501 Civic Center Dr., Ste. 275 San Rafael, CA 94903 Ph. (415) 473-6117 Email: BWashington@marincounty.org
Attorney for County of Marin
CHARLES J. MCKEE County Counsel, County of Monterey Office of the County Counsel 168 West Alisal St., 3rd Flr. Salinas, CA 93901 Ph. (831) 755-5045 Email: mckeecj@co.monterey.ca.us

19 Attorney for City of Davis

Attorney for County of Monterey

20 RAFAEL ALVARADO

City Attorney, City of East Palo Alto 21 East Palo Alto City Attorney’s Office

22

2415 University Avenue East Palo Alto, CA 94303

23 Ph. (650) 853-5901 Email: ralvarado@cityofepa.org

24

Attorney for City of East Palo Alto 25

JANNIE L. QUINN Mountain View City Attorney City of Mountain View 500 Castro Street Mountain View, CA 94041 Ph. (650) 903-6496 Email: jannie.quinn@mountainview.gov
Attorney for City of Mountain View

26 ///

27 ///

28 ///

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RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1 BARBARA PARKER

City Attorney, City of Oakland 2 Office of the City Attorney

3

City Hall, 6th Floor 1 Frank H. Ogawa Plaza

4 Oakland, CA 94612 Ph. (510) 238-3815

5 Email: bjparker@oaklandcityattorney.org

RICHARD DOYLE City Attorney, City of San Jose Office of the City Attorney 200 E. Santa Clara St., 16th Flr. San Jose, CA 95113 Ph. (408) 535-1900 Email: richard.doyle@sanjoseca.gov

6 Attorney for City of Oakland
7 BRUCE GOODMILLER 8 City Attorney, City of Richmond
Office of the City Attorney 9 450 Civic Center Plaza, #303
Richmond, CA 94804 10 Ph. (510) 620-6509 11 Email: Bruce_Goodmiller@ci.richmond.ca.us
12 Attorney for City of Richmond

Attorney for City of San Jose
ANTHONY P. CONDOTTI City Attorney, City of Santa Cruz Office of the City Attorney 333 Church Street Santa Cruz, CA 95060 Ph. (831) 423-8383 Email: TCondotti@abc-law.com
Attorney for City of Santa Cruz

13 CHRISTOPHER A. CALLIHAN City Attorney, City of Salinas
14 Office of the City Attorney 15 200 Lincoln Avenue
Salinas, CA 93901-2639 16 Ph. (831) 758-7256
Email: chrisc@ci.salinas.ca.us 17
Attorney for City of Salinas 18

TERESA STRICKER Interim City Attorney, City of Santa Rosa City Attorney’s Office 100 Santa Rosa Ave., Rm. 8 Santa Rosa, CA 95404 Ph. (510) 995-5800 Email: tstricker@srcity.org
Attorney for City of Santa Rosa

19

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27

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BRIEF OF AMICI CURIAE CALIFORNIA CITIES AND COUNTIES – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40-2 Filed 03/22/17 Page 1 of 2

1 LOUISE H. RENNE (SBN 36508) JONATHAN V. HOLTZMAN (SBN 99795)
2 LINDA M. ROSS (SBN 133874) lross@publiclawgroup.com
3 RENNE SLOAN HOLTZMAN SAKAI LLP 1220 Seventh Street, Suite 300
4 Berkeley, CA 94710 Ph. (510) 995-5800
5 Fx. (415) 678-3838

6 Attorneys for Amici Curiae

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9 CITY AND COUNTY OF SAN FRANCISCO, Case No. 17-cv-00485-WHO

Case No. 17-cv-00574-WHO

10

Plaintiff,

(Related cases)

11 v.
12 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,
13 JOHN F. KELLY, Secretary of United States Department of Homeland Security,
14 JEFFERSON B. SESSIONS, Attorney General of the United States, DOES 1-100,
15 Defendants
16 COUNTY OF SANTA CLARA,
17 Plaintiff,
18 v.
19 DONALD J. TRUMP, President of the United
20 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United
21 States Department of Homeland Security, DANA J. BOENTE, in his official capacity as
22 Acting Attorney General of the United States, MARK SANDY, in his official capacity as
23 Acting Director of the Office of Management and Budget, and DOES 1-50,
24 Defendants
25

[PROPOSED] ORDER GRANTING CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AS AMICI CURIAE IN SUPPORT OF MOTIONS FOR PRELIMINARY INJUNCTION FILED BY COUNTY OF SANTA CLARA AND CITY AND COUNTY OF SAN FRANCISCO

26

27

28

[PROPOSED] ORDER GRANTING CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

Case 3:17-cv-00485-WHO Document 40-2 Filed 03/22/17 Page 2 of 2

RENNE SLOAN HOLTZMAN SAKAI LLP Attorneys at Law

1

The Court hereby grants the motion to file as amici curiae, filed by County of Alameda, City of

2 Berkeley, City of Davis, City of East Palo Alto, City of Fremont, County of Marin, County of Monterey,

3 City of Mountain View, City of Oakland, City of Richmond, City of Salinas, City of San Jose, City of

4 Santa Cruz, and City of Santa Rosa, in support of City and County of San Francisco’s motion for

5 preliminary injunction (Case No. 17-cv-00485-WHO ) and County of Santa Clara’s motion for

6 preliminary injunction (Case No. 17-cv-00574-WHO).

7

IT IS SO ORDERED.

8 Dated: March ___, 2017

RENNE SLOAN HOLTZMAN SAKAI LLP

9

10

11

Hon. William H. Orrick

District Judge, USDC-NDCA

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
1 [PROPOSED] ORDER GRANTING CALIFORNIA CITIES AND COUNTIES’ MOTION FOR LEAVE TO FILE AMICUS BRIEF – Case Nos. 17-cv-00485-WHO and 17-cv-00574-WHO

 
 Case 3:17-cv-00485-WHO Document 41 Filed 03/22/17 Page 1 of 6

1 JAMIE S. GORELICK

jamie.gorelick@wilmerhale.com

2 CATHERINE M.A. CARROLL

catherine.carroll@wilmerhale.com

3 CLAIRE M. BERGERON

claire.bergeron@wilmerhale.com 4 SHEILA E. MENZ

sheila.menz@wilmerhale.com 5 WILMER CUTLER PICKERING

6

HALE AND DORR LLP 1875 Pennsylvania Avenue, NW

7

Washington, D.C. 20006 Telephone: (202) 663-6500

8 Facsimile: (202) 663-6363

Attorneys for Amici Curiae

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

12 CITY AND COUNTY OF SAN FRANCISCO,

Case No. 3:17-cv-00485-WHO

13

Plaintiff,

Case No. 3:17-cv-00574-WHO

v. 14 DONALD J. TRUMP, President of the United
15 States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States Department
16 of Homeland Security, JEFFERSON B.

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE FOR TAHIRIH JUSTICE CENTER, ASIAN LAW ALLIANCE, ASIAN PACIFIC

17 SESSIONS, Attorney General of the United States, DOES 1-100,

18

Defendants.

INSTITUTE ON GENDER BASED VIOLENCE, ASISTA, CASA DE ESPERANZA, DOLORES STREET COMMUNITY SERVICES,

19 COUNTY OF SANTA CLARA,

20

Plaintiff,

v. 21 DONALD J. TRUMP, President of the United

IMMIGRATION CENTER FOR WOMEN AND CHILDREN, MAITRI, AND PANGEA LEGAL SERVICES IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS; [PROPOSED] ORDER

22 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

Judge: Hon. William H. Orrick

23 Department of Homeland Security, JEFFERSON B.

24

SESSIONS, in his official capacity as Attorney General of the United States, JOHN MICHAEL

25 “MICK” MULVANEY, in his official capacity as

Director of the Office of Management and Budget, 26 and DOES 1-50,

27

Defendants.

28

Case 3:17-cv-00485-WHO Document 41 Filed 03/22/17 Page 2 of 6

1

MOTION FOR LEAVE TO

FILE BRIEF AMICI CURIAE

2

Case No. 3:17-cv-00485-WHO

Case No. 3:17-cv-00574-WHO

3

4

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

5

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

6

PLEASE TAKE NOTICE THAT the Tahirih Justice Center (“Tahirih”) and the other above-

7 named amici hereby request permission to file the attached amicus brief in support of the Motions

8 for Preliminary Injunctions in related actions filed by Plaintiffs the City and County of San

9 Francisco (No. 3:17-cv-00485) and the County of Santa Clara (No. 3:17-cv-00574). Amici have

10 conferred with counsel for the Plaintiffs and Defendants; Plaintiffs consent to the filing of this

11 motion, and Defendants take no position. The proposed amicus brief is attached to this motion as

12 Exhibit 1. A list of all amici appears in Appendix 1 to the brief. A proposed order is attached to this

13 motion as Exhibit 2.

14 I. STANDARD FOR MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

15

The District Court, in its discretion, may accept amicus curiae briefs “concerning legal issues

16 that have potential ramifications beyond the parties directly involved, or if amici have unique

17 information or perspective that can help the court beyond the help that the lawyers for the parties are

18 able to provide.” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1068

19 (N.D. Cal. 2005) (citation and internal quotation marks omitted).

20 II. STATEMENT AND IDENTITY OF INTEREST OF AMICI CURIAE

21

Tahirih is the largest multi-city direct services and policy advocacy organization specializing

22 in assisting immigrant women and girls who survive gender-based violence, including human

23 trafficking, forced labor, domestic violence, rape and sexual assault, and female genital

24 cutting/mutilation. Tahirih serves clients at four local offices, including in San Francisco, and to

25 date, has provided free legal assistance to more than 20,000 individuals. The additional amici, Asian

26 Law Alliance, Asian Pacific Institute on Gender-Based Violence, ASISTA, Casa de Esperanza,

27 Dolores Street Community Services, Immigration Center for Women & Children, Maitri, and

28 Pangea Legal Services, include immigration service providers that serve immigrant women survivors

of gender-based crimes in San Francisco and Santa Clara County, as well as national policy

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

1

Motion for Leave to File Brief Amici Curiae for

Tahirih Justice Center, et al.

Case 3:17-cv-00485-WHO Document 41 Filed 03/22/17 Page 3 of 6

1 organizations that advocate for legal and other protections for survivors of gender-based crimes in

2 the United States. Amici have a special understanding of the direct and severe impact that the

3 Administration’s January 25, 2017 Executive Order, Enhancing Public Safety in the Interior of the

4 United States, No. 13,768, 82 Fed. Reg. 8799 (the “Executive Order”), will have on immigrant

5 survivors by limiting their access to protection from and treatment for the effects of gender-based

6 violence.

7 III. AMICI’S PERSPECTIVE WILL BENEFIT THE COURT

8

Based on their extensive work with survivors of gender-based violence, amici have special

9 insight into the Executive Order’s severely detrimental effect on immigrant women and girls in San

10 Francisco, Santa Clara County, and nationally. For example, in the two months since the Executive

11 Order was issued, the number of cases referred to Tahirih has tripled nationwide compared to the 12 year before.1 As service providers to immigrant women and national advocates on behalf of

13 immigrant women, Tahirih and co-amici regularly engage with local law enforcement on a variety of

14 efforts to assist survivors of domestic abuse in seeking protection and obtaining justice. Amici

15 therefore have firsthand knowledge of the Executive Order’s impact, which is already deterring

16 immigrant women from reporting abuse for fear that they will be deported, and is leaving crime

17 victims, local communities, and all Americans less safe.

18 IV. CONCLUSION

19

Accordingly, Tahirih Justice Center, et al., request leave to file the attached brief amici curiae

20 in both actions.

21

22

23

24

25

26

27

28 1 Tyler Kingkade, Trump Deportation Vow Is Scaring Domestic Abuse Victims From Coming Forward, Buzzfeed News (Mar. 16, 2017), http://bzfd.it/2nNRX9L.

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

2

Motion for Leave to File Brief Amici Curiae for

Tahirih Justice Center, et al.

Case 3:17-cv-00485-WHO Document 41 Filed 03/22/17 Page 4 of 6

1 2 Dated: March 22, 2017 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

By: /s/ JAMIE S. GORELICK JAMIE S. GORELICK jamie.gorelick@wilmerhale.com CATHERINE M.A. CARROLL catherine.carroll@wilmerhale.com CLAIRE M. BERGERON laire.bergeron@wilmerhale.com SHEILA E. MENZ sheila.menz@wilmerhale.com WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Telephone: (202) 663-6500 Facsimile: (202) 663-6363

3

Motion for Leave to File Brief Amici Curiae for

Tahirih Justice Center, et al.

Case 3:17-cv-00485-WHO Document 41 Filed 03/22/17 Page 5 of 6

1

ATTORNEY ATTESTATION

2

I, Jamie S. Gorelick, am the ECF User whose ID and password are being used to file this

3 Motion for Leave to File Brief Amici Curiae for Tahirih Justice Center, Asian Law Alliance, Asian

4 Pacific Institute on Gender Based Violence, ASISTA, Casa de Esperanza, Dolores Street

5 Community Services, Immigration Center for Women and Children, Maitri, and Pangea Legal

6 Services in Support of Plaintiffs’ Motions for Preliminary Injunctions. In compliance with N.D. Cal.

7 Civil L.R. 5-1(i)(3), I hereby attest that concurrence in the filing of the document has been obtained

8 from each of the signatories.

9

10

By: /s/ JAMIE S. GORELICK

11

JAMIE S. GORELICK

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

1

Motion for Leave to File Brief Amici Curiae for

Tahirih Justice Center, et al.

Case 3:17-cv-00485-WHO Document 41 Filed 03/22/17 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

I hereby certify that on March 22, 2017, I electronically filed the above document with the

3 Clerk of the Court using CM/ECF which will send electronic notification of such filing to all

4 registered counsel.

5

6

By: /s/ JAMIE S. GORELICK

7

JAMIE S. GORELICK

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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28

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

Motion for Leave to File Brief Amici Curiae for Tahirih Justice Center, et al.

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 1 of 19
EXHIBIT 1

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 2 of 19

1 JAMIE S. GORELICK

jamie.gorelick@wilmerhale.com 2 CATHERINE M.A. CARROLL

3

catherine.carroll@wilmerhale.com CLAIRE M. BERGERON

4

claire.bergeron@wilmerhale.com SHEILA E. MENZ

5

sheila.menz@wilmerhale.com WILMER CUTLER PICKERING

6

HALE AND DORR LLP 1875 Pennsylvania Avenue, NW

7 Washington, D.C. 20006 Telephone: (202) 663-6500

8 Facsimile: (202) 663-6363

9 Attorneys for Amici Curiae

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

12 CITY AND COUNTY OF SAN FRANCISCO,

Case No. 3:17-cv-00485-WHO

13

Plaintiff,

14

v.

DONALD J. TRUMP, President of the United States,

15 UNITED STATES OF AMERICA, JOHN F.

16

KELLY, Secretary of United States Department of Homeland Security, JEFFERSON B. SESSIONS,

17 Attorney General of the United States, DOES 1-100,

Defendants.

18

COUNTY OF SANTA CLARA,

19

Plaintiff,

Case No. 3:17-cv-00574-WHO
PROPOSED BRIEF FOR TAHIRIH JUSTICE CENTER, ET AL. AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTIONS
Judge: Hon. William H. Orrick

20

v.

21 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY, in his official capacity

22 as Secretary of the United States Department of

Homeland Security, JEFFERSON B. SESSIONS, in 23 his official capacity as Attorney General of the United

24 States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as Director of the Office of
25 Management and Budget, and DOES 1-50,

26

Defendants.

27

28

Case Nos. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

Proposed Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’
Motions for Preliminary Injunctions

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 3 of 19

1

TABLE OF CONTENTS

2
Page 3

INTERESTS OF AMICI CURIAE..................................................................................................1 4
SUMMARY OF ARGUMENT .......................................................................................................1 5 ARGUMENT ...................................................................................................................................2

6

I. The Executive Order Makes Immigrant Women Who Are Victims Of Gender-

Based Violence Less Safe ........................................................................................2

7

II. The Executive Order Makes San Francisco, Santa Clara, And Other

Jurisdictions Less Safe .............................................................................................7 8
III. The Executive Order Contravenes The Intent Of Federal Immigration Law By

9

Deterring Immigrant Women From Accessing Legal Protection ............................8

1. Violence Against Women Act .....................................................................9 10
2. Trafficking Victims Protection Act ...........................................................10 11 CONCLUSION..............................................................................................................................11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

i Proposed Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’
Motions for Preliminary Injunctions

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 4 of 19

1

TABLE OF AUTHORITIES

2

Page(s)

CASES

3
Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014)........................................6 4

City and Cnty of San Francisco v. Trump, et al. 5

6

No. 3:17-cv-00485 (N.D. Cal. Jan. 31, 2017)..........................................................2, 4, 5, 7

7 County of Santa Clara v. Trump, et al.

8

No. 3:17-cv-00574 (N.D. Cal. Feb. 3, 2017) ...........................................................2, 4, 5, 7

9 Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981)..........................................11

10 Plyler v. Doe, 457 U.S. 202 (1982)..................................................................................................6
11 Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952) .........................................11
12 STATUTES, RULES, AND REGULATIONS
13 8 U.S.C. § 101(a)(15).....................................................................................................................10
14
15 S.F. Admin. Code §§ 12H, 12I ........................................................................................................2

16 Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, §§ 107, 1501-13, 114 Stat.

1464-1548 ........................................................................................................2, 4, 9, 10, 11

17

Violence Against Women Act of 1994, Pub. L. No. 103-322, §§ 40701-40703,

18

108 Stat. 1796 ........................................................................................................2, 4, 9, 10

19

OTHER AUTHORITIES

20 Executive Order, No. 13,768, 82 Fed. Reg. 8799 (Jan, 25, 2017) ......................................... passim
21 159 Cong. Rec. 22 (Feb. 12, 2013) ..................................................................................................9
22
23 159 Cong. Rec. 29 (Feb. 28, 2013) ..................................................................................................9

24 103rd Cong., 1st Sess., H. Rep. 103-395 .........................................................................................9

25 Andrea Noble, Donald Trump, Police Union at Odds Over ‘Sanctuary Cities’ Funding, Wash. Times (Nov. 22, 2016) .........................................................................................................8
26

David Lisak and Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists

27

VIOLENCE & VICTIMS, Vol. 17, No. 1 (Feb. 2002) .......................................................8

28

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

ii Proposed Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’
Motions for Preliminary Injunctions

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 5 of 19

1

James Queally, Latinos Are Reporting Fewer Sexual Assaults Amid a Climate of Fear in Immigrant Communities, LAPD Says, L.A. Times (Mar. 21, 2017) ...................................7

2 Joint Statement, U.S. Mayors, Police Chiefs Concerned With Sanctuary Cities Executive Order

3

(Jan. 25, 2017)......................................................................................................................8

4 Katie Mettler, ‘This is Really Unprecedented’: ICE Detains Woman Seeking

5

Domestic Abuse Protection at Texas Courthouse, Wash. Post (Feb. 16, 2017) ................6

6 Liz Robbins, Police Fear Trump Immigration Orders May Handcuff Effort to Fight Gangs, N.Y. Times (Feb. 22, 2017) ......................................................................................................7, 8

7

Mai Thi Nguyen and Hannah Gill, Interior Immigration Enforcement: The Impacts of Expanding

8

Local Law Enforcement Authority, 53 Urb. Stud. J. 302 (2015) .........................................7

9 Major County Sheriffs’ Association and Major City Chiefs Association, Letter Opposing S. 2146

10

(Oct. 20, 2015) .................................................................................................................2, 8

11 Mark Joseph Stern, Bad for Undocumented Immigrants, a Gift to Domestic Abusers, Slate.com (Mar. 8, 2017) ......................................................................................................................6
12

13

Michael Runner, et al., Intimate Partner Violence in Immigrant and Refugee Communities: Challenges, Promising Practices, and Recommendations, Family Violence Prevention

14

Fund (Mar. 2009) ............................................................................................................2, 3

15 Nicholas Kulish, Caitlin Dickerson, and Ron Nixon, U.S. Immigration Agents Discover New Freedom to Deport Under Trump, N.Y. Times (Feb. 25, 2017) .........................................6
16

17 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013) ............................................................................................2, 5, 7

18

No Mas Staff, New Study of Domestic Violence and Sexual Assault in the U.S. Latin@

19

Community Reveals Barriers to Reporting and High Willingness to Intervene to Help

20

Survivors (Apr. 21, 2015) ...................................................................................................3

21 Nora Caplan-Bricker, I Wish I’d Never Called the Police, Slate.com (Mar. 19, 2017) ...............6,7

22 Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa
L. Rev. 1449 (2006) .............................................................................................................5 23

24

Pamela Constable, For Immigrant Women, Domestic Violence Creates a Double Shadow, Wash. Post (Dec. 2, 2013)...............................................................................................................3

25 PRI’s The World, Some Immigrant Women, Victims of Domestic Violence, Afraid to Seek Help

26

(Mar. 21, 2013) ....................................................................................................................3

27 Scott D. Rhodes, et al., The Impact of Local Immigration Enforcement Policies on the Health of

28

Immigrant Hispanics/Latinos in the United States, 105(2) Am. J. Pub. Health 329 (Feb. 2015) ....................................................................................................................................5

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1

The Guardian, Undocumented Woman Arrested After Seeking Protection Prepares for Possible Indictment (Mar. 2, 2017) ...................................................................................................6

2 The Superior Court of California, County of Santa Clara, “Domestic Violence Restraining

3

Order,” http://bit.ly/2nOfVCJ .............................................................................................3

4 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Center for

5

American Progress (Jan. 26, 2017) .....................................................................................7

6 Tyler Kingkade, Trump Deportation Vow Is Scaring Domestic Abuse Victims From Coming Forward, Buzzfeed News (Mar. 16, 2017)..........................................................................6

7

U.S. Dep’t. of Justice, Office of Violence Against Women, 2016 Biennial Report to Congress

8

(2016) .................................................................................................................................11

9 Washington State Institute for Public Policy, Recidivism Trends of Domestic Violence Offenders

10

in Washington State (Aug. 2013).........................................................................................8

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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INTERESTS OF AMICI CURIAE 1
The Tahirih Justice Center (“Tahirih”) is the largest multi-city direct services and policy 2
advocacy organization specializing in assisting immigrant women and girls who survive gender3
based violence, including human trafficking, forced labor, domestic violence, rape and sexual 4
assault, and female genital cutting/mutilation. Tahirih serves clients at four local offices, including 5
in San Francisco, and to date, has provided free legal assistance to more than 20,000 individuals. 6
The additional amici, Asian Law Alliance, Asian Pacific Institute on Gender-Based Violence, 7
ASISTA, Casa de Esperanza, Dolores Street Community Services, Immigration Center for Women 8
& Children, Maitri, and Pangea Legal Services, include immigration service providers that serve 9
immigrant women survivors of gender-based crimes in San Francisco and Santa Clara County, as 10
well as national policy organizations that advocate for legal and other protections for survivors of 11
gender-based crimes in the United States.1 Amici have a special understanding of the direct and 12
severe impact that the Administration’s January 25, 2017 Executive Order, Enhancing Public Safety 13
in the Interior of the United States, No. 13,768, 82 Fed. Reg. 8799 (the “Executive Order”), will 14
have on immigrant survivors by limiting their access to protection from and treatment for the effects 15
of gender-based violence. 16
SUMMARY OF ARGUMENT 17
Amici respectfully submit this brief to assist the Court in analyzing the community benefits 18
of so-called “sanctuary” laws and policies in San Francisco, Santa Clara, and nationwide, and the 19
harms to those communities and to the public interest that are occurring as a result of the Executive 20
Order. Based on amici’s extensive work with survivors of gender-based violence, amici believe the 21
Executive Order is already having and will continue to have a severely detrimental effect on 22
immigrant survivors for three reasons. 23
First, the Executive Order makes immigrant women and girls who are survivors of gender24
based violence less safe by deterring them from accessing vital emergency services and protection 25
from abuse. For many immigrant survivors, the first step in obtaining protection from gender-based 26
violence involves reaching out to local law-enforcement officers or emergency medical-services 27
providers. Under laws respecting the separate functions of federal agencies and local governments, 28
1 Amici’s full names and addresses appear at Appendix 1.

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1 immigrant survivors have been able to seek these life-saving services without fear that doing so will 2 place them at risk of deportation.2 The Executive Order has already chilled the willingness of

3 immigrant survivors to seek these services and is forcing San Francisco, Santa Clara, and other

4 jurisdictions nationwide to make budgetary and policy decisions that could result in a loss of critical

5 funding for victims’ services or require them to alter their laws and policies in a manner that 6 discourages women in abusive environments from seeking help.3

7

Second, by deterring immigrant women from reporting gender-based violence and accessing

8 critical services, the Executive Order makes the broader communities of San Francisco, Santa Clara,

9 and similarly situated jurisdictions less safe. Under the Executive Order, these jurisdictions face an

10 impossible choice between losing billions of dollars in federal funding or altering policies that

11 victims’ advocates, law-enforcement officers, and local officials all view as critical to ensuring 12 public safety and prosecuting criminal activity. 4

13

Finally, the Executive Order prevents immigrant survivors of gender-based violence from

14 accessing legal protections available to them under the Violence Against Women Act and the

15 Trafficking Victims Protection Act. In this regard, the Executive Order contravenes Congress’s

16 intent in enacting measures to protect immigrant survivors of gender-based violence and encourage

17 them to report abuse.

18

ARGUMENT

19 I. 20

The Executive Order Makes Immigrant Women Who Are Victims Of Gender-Based Violence Less Safe
Of the many women in the United States who are raped or physically assaulted by an

21 intimate partner each year, “immigrant and refugee women are especially vulnerable.”5 Immigrant

22

23

2 First Amended Complaint for Declaratory and Injunctive Relief at ¶ 3, City of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Feb. 27, 2017) (“San Francisco FAC”), Dkt. 20; Complaint

24

for Declaratory and Injunctive Relief at ¶¶ 56-57, Cty. of Santa Clara v. Trump, No. 3:17-cv-00574 (N.D. Cal. Feb. 3, 2017), Dkt. 1 (“Santa Clara Complaint”).

25 3 See S.F. Admin. Code §§ 12H, 12I.

4 See Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in 26 Immigration Enforcement (May 2013), http://bit.ly/1Adp6RD; Letter from the Major Cities Chiefs

27

and Major County Sheriffs’ Associations Opposing S. 2146 (Oct. 19, 2015), http://bit.ly/1RnPg7g; San Francisco FAC at ¶ 33; Santa Clara Complaint at ¶ 58.

28 5 Michael Runner, et al., Intimate Partner Violence in Immigrant and Refugee Communities: Challenges, Promising Practices, and Recommendations at 11, Family Violence Prevention Fund

(Mar. 2009), http://bit.ly/1WrvmtD.

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1 women face unique obstacles in seeking protection from gender-based violence, including language

2 barriers, lack of familiarity with social services and law-enforcement systems, and fear of the police 3 based on past experiences with law enforcement in their countries of origin.6 Survivors of gender-

4 based violence may also fear that contacting authorities to report abuse will put the survivor or a 5 family member at risk for deportation.7 For example, in a 2015 survey of 800 Latinos and Latinas

6 nationwide, 41 percent of respondents cited fear of deportation as the number-one barrier preventing 7 Latino and Latina victims of domestic violence from seeking help.8 Indeed, many abusers are well

8 aware of this and therefore use a victim’s immigration status against her, threatening to contact 9 immigration authorities and report the victim if she discloses abuse.9 While this tool of exploitation

10 and control is especially prominent when the abuser is a U.S. citizen or legal resident and the victim

11 is undocumented, an abuser may also use the threat of deportation to control a victim who actually

12 holds lawful status. An abuser will often isolate a victim, actively try to prevent her from learning

13 that she does have lawful immigration status, and capitalize on her false belief that her status is 14 within his control.10

15

To combat these barriers, San Francisco, Santa Clara, and other jurisdictions nationwide have

16 enacted policies designed to allow survivors of gender-based violence to seek protection from local

17 agencies without fear that those agencies are acting as an arm of the federal immigration authorities.

18 These policies enable survivors to access immediate, short-term protections, such as emergency 19 medical care, as well as longer-term benefits, such as restraining orders.11 Moreover, because

20

21 6 Id. at 4-5.

7 Pamela Constable, For Immigrant Women, Domestic Violence Creates a Double Shadow, Wash. 22 Post (Dec. 2, 2013), http://wapo.st/2ntxYkC.

23

8New Study of Domestic Violence and Sexual Assault in the U.S. Latin@ Community Reveals Barriers to Reporting and High Willingness to Intervene to Help Survivors, No Mas (Apr. 21, 2015),

24 http://bit.ly/1OHQ7NV. 9 Runner, Intimate Partner Violence at 4; PRI’s The World, Some Immigrant Women, Victims of

25 Domestic Violence, Afraid to Seek Help (Mar. 21, 2013), http://bit.ly/2n4Dbi0 (quoting Sister

Rosemary Welsh, Executive Director of Casa de Misericordia in Laredo, Texas, as follows: “One of

26 the many ways men would keep [immigrant women] in a domestic violence situation was saying that

‘I am a U.S. citizen’ or ‘I am a legal permanent resident, and you call the police, they will deport you 27 and I will stay with the kids. … ”).

28

10 See Runner, Intimate Partner Violence at 12. 11 See The Superior Court of California, County of Santa Clara, “Domestic Violence Restraining

Orders,” http://bit.ly/2nOfVCJ.

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1 federal law provides immigration protection to survivors of domestic violence, reaching out to law

2 enforcement can enable a survivor to learn that she might qualify for immigration status or relief

3 from deportation. See infra, Part III. Examples drawn from amici’s clients illustrate this in practice:

4

• “P” was living in Gibraltar where she met and married a U.S. citizen. After they had a

son together, P’s husband convinced her to sell her home, quit her job, and move with

5

him to the United States. Over time, P’s husband grew verbally and physically abusive.

On one occasion, he intentionally crashed the couple’s car as he was driving with P and

6

their baby. The abuse escalated, culminating in an incident in which P’s husband

screamed at her, strangled her, and scratched her face and eye. P did not immediately

7

call the police, fearing violent retaliation from her husband. Finally, after P’s husband

threw her and their child out of the house during a snowstorm, P’s friend encouraged her

8

to call the police, and after doing so, P was able to get a protective order. According to P,

9

she never would have reported the abuse if she thought there was a chance that she would be detained, deported, and separated from her son, who has autism and requires ongoing

10

special care. Through assistance from Tahirih, P obtained lawful permanent residence in 2015 based on a Violence Against Women Act “self-petition,” and she is eligible for

11

citizenship next year. Her son is thriving now that he is not regularly witnessing domestic violence.

12

• “O,” a client of Pangea Legal Services, is from Mexico. Her husband beat her, raped her,

13

and forced her to work in dangerous conditions. O fled to the United States for safety. She had four U.S. citizen children after moving to California. But the father of her

14

three youngest children also was abusive and violent. O did not report the abuse for several years out of fear that the police would return her to Mexico. However, with the

15

help of her neighbors, O was reassured that she could share her story with the police, and

she ultimately agreed to speak with a police officer about her abuser’s behavior. As a

16

result, O has a work permit and pending applications for asylum and a U visa as a victim

of crime. She and her four U.S. citizen children are now living in safety.

17

The Executive Order drastically alters the current landscape by forcing San Francisco, Santa

18 Clara, and similar jurisdictions to choose either to forgo billions of dollars in essential federal

19 funding or to change their policies.12 Either choice would have severely negative consequences for

20 survivors of gender-based violence.

21

If San Francisco and Santa Clara choose to maintain their policies, they could lose funding

22 necessary to support protective services and treatment for all survivors of gender-based violence,

23 including U.S. citizens. San Francisco, for example, has already identified “services for women that

24 are domestic violence survivors” as a category of programming that could be cut if it loses federal

25 funding. Id. at 143. It also anticipates a loss of approximately $800 million dollars for public

26 hospitals and clinics. Id. at ¶¶ 123-126. Likewise, in Santa Clara, the loss of federal funding could

27 result in a seventy percent reduction in the annual budget of a medical center providing women’s

28

12 San Francisco FAC at ¶ 4; Santa Clara Complaint at ¶ 27.

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1 health and emergency services to the indigent. Santa Clara Complaint at ¶¶ 29-30. Both

2 jurisdictions believe that they will have to significantly adjust their budgets in the very near term to 3 account for the potential loss of federal funding.13

4

On the other hand, if San Francisco and Santa Clara were coerced into changing their so-

5 called “sanctuary” laws and policies, the results would be equally devastating. Studies show that

6 when local officials enforce federal immigration law, immigrants are deterred from contacting local

7 officials—be it in an emergency room or by dialing 911—out of fear that doing so will result in

8 detention or deportation. One study from North Carolina illustrates the stark impact of such a policy

9 on women and children’s health: As a result of state and federal immigration enforcement

10 agreements, Hispanic/Latina mothers in North Carolina sought prenatal care later and received 11 poorer quality care compared to non-Hispanic/Latina mothers.14 The study noted that “participants

12 reported profound mistrust of health services, avoiding health services, and sacrificing their health 13 and the health of their family members.”15

14

A survey of 2,000 Latinos in the Chicago, Houston, Los Angeles, and Phoenix areas in 2012

15 similarly found that “increased involvement of the police in immigration enforcement has

16 significantly heightened the fears many Latinos have of the police, contributing to their social 17 isolation and exacerbating their mistrust of law enforcement authorities.”16 Forty-five percent of all

18 those surveyed, and seventy percent of the undocumented immigrants surveyed, reported that as a

19 result of increased cooperation between the police and immigration authorities, they were less likely 20 to contact law enforcement if they were victims of a crime.17 That chilling effect, which impedes the

21 ability of immigrant women to access the justice system and hold their abusers accountable, has

22 serious ramifications for public safety and also raises due-process and equal-protection concerns.

23

24

13 County of Santa Clara’s Motion for Preliminary Injunction (“Santa Clara PI”) at 23, No. 3:17-cv00574 (N.D. Cal. Feb. 23, 2017), Dkt. 26; City and County of San Francisco’s Notice of Motion and

25

Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof (“San Francisco PI”) at 2, No. 3:17-cv-00485 (N.D. Cal. Mar. 8, 2017), Dkt. 21.

26 14 Scott D. Rhodes, et al., The Impact of Local Immigration Enforcement Policies on the Health of Immigrant Hispanics/Latinos in the United States, 105(2) Am. J. Pub. Health 329 (Feb. 2015)

27 15 Id.

28

16 Theodore, Insecure Communities at 1. 17 Id.; see also Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the

Police, 91 Iowa L. Rev. 1449, 1451 (2006).

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1 See Plyler v. Doe, 457 U.S. 202, 226 (1982); Arizona Dream Act Coalition v. Brewer, 757 F.3d

2 1053, 1065 (9th Cir. 2014).

3

This is not an abstract fear. Less than three weeks after the Administration issued the

4 Executive Order, and amidst widespread reports of escalating immigration enforcement activity,

5 U.S. Immigration and Customs Enforcement (“ICE”) agents arrested an immigrant woman at a 6 courthouse in El Paso, Texas, where she had gone to seek an order of protection from her abuser.18

7 According to media reports, federal agents later justified the timing and location of this arrest by

8 noting that because the woman was “residing at the Center Against Sexual and Family Violence, and

9 not at [her] residence, it was determined that the best opportunity to locate [the woman] would be 10 after the hearing [on an order of protection].”19 Separately, in Denver, Colorado, City Attorney

11 Kristin Bronson reported that since the issuance of the Executive Order, four domestic-violence

12 victims have informed her office that they no longer wish to pursue charges against their abusers out 13 of fear that doing so will place them at risk of deportation.20 The district attorney in Travis County,

14 Texas, similarly reported that at least one domestic-violence case there recently stalled because the 15 victim declined to press charges out of fear of deportation.21 At the same time, staff at domestic-

16 violence shelters and clinics operating in communities with large undocumented populations are

17 reporting a “large drop in the number of women coming in for services,” indicating that

18 undocumented victims “aren’t taking the next steps to escape abusers, such as pressing charges or 19 moving into shelters.”22

20

As recently as this week, reports indicate that immigrant survivors of gender-based violence

21 across the country—from Oakland, to Boston, to Tucson—are living in fear as a result of the

22

18 Katie Mettler, ‘This is Really Unprecedented’: ICE Detains Woman Seeking Domestic Abuse 23 Protection at Texas Courthouse, Wash. Post (Feb. 16, 2017), http://wapo.st/2nfpmOf; see also

24

Nicholas Kulish, Caitlin Dickerson, and Ron Nixon, U.S. Immigration Agents Discover New Freedom to Deport Under Trump, N.Y. Times (Feb. 25, 2017), http://nyti.ms/2mie63i.

25 19 Undocumented Woman Arrested After Seeking Protection Prepares for Possible Indictment, The Guardian (Mar. 2, 2017), http://bit.ly/2mL34kh.

26 20 Mark Joseph Stern, Bad for Undocumented Immigrants, a Gift to Domestic Abusers, Slate.com

(Mar. 8, 2017), http://slate.me/2mZlJvS. 27 21 Nora Caplan-Bricker, I Wish I’d Never Called the Police, Slate.com (Mar. 19, 2017),

28

http://slate.me/2mYrYgC. 22 Tyler Kingkade, Trump Deportation Vow Is Scaring Domestic Abuse Victims From Coming

Forward, Buzzfeed News (Mar. 16, 2017), http://bzfd.it/2nNRX9L.

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1 Administration’s pledge to deport as many undocumented immigrants as possible, which could

2 “sweep up victims of domestic violence, putting them on a fast track to deportation before they can 3 seek legal status … or justice through the legal system.”23 In Los Angeles, police Chief Charlie

4 Beck said that his city is already seeing evidence of this chilling effect: Reports of sexual assault

5 have dropped by 25 percent and domestic violence by 10 percent among the Latino population since 6 the beginning of the year.24

7 II. 8

The Executive Order Makes San Francisco, Santa Clara, And Other Jurisdictions Less Safe
By chilling the willingness of immigrant women to report gender-based violence, the

9 Executive Order jeopardizes the safety not only of immigrant women themselves, but also of their

10 broader communities. Fostering trust between the police and immigrants is essential to ensuring

11 community safety and is the basis for the Santa Clara and San Francisco policies.25 For example,

12 one study of an Alamance County, North Carolina, policy encouraging local police officers to assist

13 in enforcing immigration laws found that after the policy took effect, immigrant interviewees were

14 reluctant to leave their homes or drive, for fear of encountering the police.26 When asked about

15 crime-reporting practices, “the majority of Hispanic interviewees stated that they would hesitate

16 before reporting crime to authorities out of fear that a friend, neighbor, or family member might be

17 placed in danger of deportation.”27 Another recent report concluded that there are, on average, 35.5

18 fewer crimes committed per 10,000 people in so-called “sanctuary” counties than there are in non-

19 sanctuary counties.28 For this reason, major policing groups, including the Major Cities Chiefs

20 23 Caplan-Bricker, I Wish I’d Never Called the Police.
21 24 James Queally, Latinos Are Reporting Fewer Sexual Assaults Amid a Climate of Fear in

22

Immigrant Communities, LAPD Says, L.A. Times (Mar. 21, 2017), http://lat.ms/2nPwdva. 25 See, e.g., Theodore, Insecure Communities at 2-3; Santa Clara PI at 16; San Francisco PI at 3; see

23 also Liz Robbins, Police Fear Trump Immigration Orders May Handcuff Effort to Fight Gangs, N.Y. Times at 1, 2 (Feb. 22, 2017) (quoting Suffolk County Police Commissioner as explaining

24 “[t]he last thing I want is a fearful community. Whether its fear of criminals or fear of law enforcement. We solve crimes based on people coming to us. It’s that simple.”),

25 http://nyti.ms/2mVplOt. 26 Mai Thi Nguyen and Hannah Gill, Interior Immigration Enforcement: The Impacts of Expanding
26 Local Law Enforcement Authority, 53 Urb. Stud. J. 302, 14 (2015)

27

https://planning.unc.edu/people/faculty/mainguyen/InteriorImmigrationEnforcement_UrbanStud201 5Nguyen0042098014563029.pdf.

28 27 Id. at 15. 28 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, 2, Center for

American Progress (Jan. 26, 2017), http://ampr.gs/2kxOcHX.

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1 Association (“MCCA”), Major County Sheriffs Association, International Association of Chiefs of

2 Police, and National Fraternal Order of Police have opposed efforts to defund so-called “sanctuary” 3 jurisdictions.29 As the MCCA noted in response to the issuance of the Executive Order: “[c]ities that

4 aim to build trusting and supportive relations with immigrant communities should not be punished 5 because this is essential to reducing crime and helping victims.”30

6

When domestic violence goes unreported, entire communities are put at risk. Studies show

7 that the rates of recidivism for domestic-violence offenders may be higher than for other crimes, and 8 that perpetrators of sexual violence may go on to commit other violent acts.31 By deterring

9 immigrant women from reporting gender-based violence, therefore, the Executive Order has

10 especially troubling implications for local community safety: It will hinder local law-enforcement

11 efforts to apprehend perpetrators and prevent future crimes.

12

Furthermore, the Executive Order places San Francisco, Santa Clara, and other jurisdictions

13 at immediate risk of losing critical funding used for public safety initiatives. Santa Clara anticipates,

14 for example, that the loss of federal dollars will force the County to roll back “juvenile justice,

15 security, intelligence initiatives, and multifaceted crime prevention.” Santa Clara Complaint at ¶ 34.

16 And San Francisco believes the loss of funding would have “severe public health and public safety

17 impacts,” including significant reductions in the size of the city’s police force. See San Francisco

18 FAC at ¶ 143.

19 III. The Executive Order Contravenes The Intent Of Federal Immigration Law By
Deterring Immigrant Women From Accessing Legal Protection 20
Finally, by deterring immigrant survivors of gender-based violence from accessing
21 protections specifically designed for them under federal immigration laws, the Executive Order
22

23 29 Letter from the Major County Sheriffs’ Association and Major City Chiefs Association Opposing

S. 2146 (Oct. 20, 2015), http://bit.ly/1RnPg7g; Robbins, Police Fear Trump Immigration Orders

24 May Handcuff Effort to Fight Gangs (quoting a statement by the International Association of Chiefs

of Police); Andrea Noble, Donald Trump, Police Union at Odds Over ‘Sanctuary Cities’ Funding,

25 Wash. Times (Nov. 22, 2016), http://bit.ly/2nfrzJt (citing National Fraternal Order of Police former

Executive Director James Pasco).

26 30 Joint Statement, U.S. Mayors, Police Chiefs Concerned With Sanctuary Cities Executive Order

27

(Jan. 25, 2017), http://bit.ly/2n9zjf6. 31 See Recidivism Trends of Domestic Violence Offenders in Washington State (Aug. 2013),

28 Washington State Institute for Public Policy, http://bit.ly/2nG4RL4; David Lisak and Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, VIOLENCE & VICTIMS, Vol. 17

, No. 1, 73-84 (Feb. 2002), http://bit.ly/1txSnPZ.

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1 directly contravenes congressional intent. Congress has long recognized that immigrant women are

2 uniquely vulnerable to abuse because abusers often withhold immigration status as a means of

3 exploitation. To ensure that immigrant women feel safe reporting crimes to the local police,

4 Congress has enacted multiple laws that provide assistance and protection to immigrant survivors of

5 gender-based violence, sexual assault, and human trafficking. Two laws in particular—the Violence

6 Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, § 40701-40703, 108 Stat. 1796, and

7 the Trafficking Victims Protection Act of 2000 (“TVPA”), Pub. L. No. 106-386, §§ 107, 1501-13,

8 114 Stat. 1464-1548—are designed to encourage noncitizen women to seek out emergency services,

9 report crimes, and cooperate with local law enforcement without fear that they will be turned over to

10 federal immigration authorities. Both statutes, and their subsequent reauthorizations, have enjoyed 11 long-standing and widespread bipartisan support in Congress.32

12

Absent a nationwide injunction, the Executive Order undercuts the important protections of

13 these laws. By coercing local safety officers into enforcing federal immigration laws, the Order

14 deters the very reporting and cooperation those Acts sought to engender. It puts survivors at risk of

15 deportation simply for seeking protection from their abusers—precisely the outcome Congress

16 sought to prevent.

17

1. Violence Against Women Act

18

In passing VAWA, Congress acknowledged that “[m]any immigrant women live trapped and

19 isolated in violent homes, afraid to turn to anyone for help. They fear both continued abuse if they 20 stay with their batterers and deportation if they attempt to leave.” 103rd Cong., 1st Sess., H. Rep.

21 103-395 at 25. For some, deportation may involve additional trauma such as forced separation from

22 children. One purpose of VAWA, therefore, was to “permit[] battered immigrant women to leave

23 their batterers without fearing deportation.” Id.

24

VAWA fulfilled this purpose in two important ways. First, it prevented U.S. Citizen

25 (“USC”) and Lawful Permanent Resident (“LPR”) abusers from exploiting their spouses’ lack of

26 immigration status. An immigrant married to a USC or an LPR often depends on her spouse to

27
28 32 The most recent reauthorization of VAWA, which included TVPA reauthorization, passed the Senate by a vote of 78-22 and the House of Representatives by a vote of 286-138. See 159 Cong. Rec. 29, H800 (Feb. 28, 2013); 159 Cong. Rec. 22, S616 (Feb. 12, 2013).

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1 petition for lawful permanent residence on her behalf. Before VAWA, this provided a very effective

2 tool that USC or LPR abusers could use to deter their victims from reporting abuse. VAWA,

3 however, allowed immigrant survivors of domestic violence and sexual assault to “self-petition” for

4 lawful permanent residence on behalf of themselves and their children without the knowledge or

5 involvement of an abusive USC or LPR spouse or family member. See Pub. L. No. 103-322 §

6 40701. Second, it permitted certain survivors who were already in immigration proceedings to seek

7 cancellation of removal, effectively shielding them from deportation. See Pub. L. No. 103-322 §

8 40703.

9

2. Trafficking Victims Protection Act

10

In 2000, Congress strengthened VAWA’s protections for immigrant women with the passage

11 of TVPA. Pub. L. No. 106-386. This law not only improved access to VAWA’s existing forms of

12 relief, but also established two additional visa classifications for noncitizens: the “U” visa for

13 immigrant victims of violent crime, 8 U.S.C. § 101(a)(15)(U), and the “T” visa for immigrant

14 victims of severe forms of human trafficking, 8 U.S.C. § 101(a)(15)(T). Moreover, TVPA expanded

15 access to services for noncitizen survivors of gender-based violence and sexual assault and enhanced

16 funding opportunities for local law enforcement to respond to their unique needs. Pub. L. No. 106-

17 386 § 1512.

18

Like VAWA, these provisions were designed “to remove immigration laws as a barrier that

19 kept battered immigrant women and children locked in abusive relationships.” Id. at § 1502(a)(1).

20 To that end, TVPA fosters and relies on greater collaboration between law enforcement and

21 immigrant victims of crimes. The purpose of these protections, as expressly stated in the statutory

22 text, is to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute

23 cases of domestic violence, sexual assault, trafficking of aliens, and other crimes”; to “encourage

24 law enforcement officials to better serve immigrant crime victims and to prosecute crimes

25 committed against aliens”; and to “facilitate the reporting of crimes to law enforcement officials by

26 trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status.” Id. at

27 § 1513(a)(2)(A)-(B).

28

Congress thus recognized that local law enforcement succeeds in protecting public health and

safety when all members of the community are willing to come forward and cooperate with

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

10 Proposed Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’ Motions for Preliminary Injunctions

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 17 of 19

1 authorities. 33 It also affirmed that these protections were “in keeping with the humanitarian interests

2 of the United States.” Id. § 1513(a)(2)(A). Unless enjoined, the Executive Order will continue to

3 result in immigration enforcement actions that flout Congress’s express purpose in enacting VAWA

4 and TVPA. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J.,

5 concurring) (“When the President takes measures incompatible with the expressed or implied will of

6 Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional

7 powers minus any constitutional powers of Congress over the matter.”); Pennhurst State Sch. &

8 Hosp. v. Halderman, 451 U.S. 1, 24 (1981) (“Congress must express clearly its intent to impose

9 conditions on the grant of federal funds so that the States can knowingly decide whether or not to

10 accept those funds”).

11

The Executive Order places San Francisco, Santa Clara, and similarly situated jurisdictions

12 across the country in an impossible catch-22: Either reject the federal government’s demands and

13 risk losing the billions of dollars in federal funding they use to keep communities safe, or comply

14 with the Executive Order and risk eroding the community trust and access to justice necessary to

15 keep their communities safe. Unless enjoined, the Executive Order leaves crime victims, local

16 communities, and all Americans less safe.

17 CONCLUSION
18 The Court should grant the Plaintiffs’ requested relief.
19

20

21

22

23

24

25

26 33 As the United States Department of Justice noted in a February 2017 report to Congress, “[f]ear of

27

deportation is a tremendous concern for some immigrant victims of domestic/sexual violence, and can result in victims not calling the police for help. … The VAWA self-petition and the U and T

28 visas are remedies available to immigrant and refugee victims of domestic/sexual violence and other crimes to assist them in obtaining safety and escaping their abusers.” U.S. Dep’t. of Justice, Office

of Violence Against Women, 2016 Biennial Report to Congress, 46, http://bit.ly/2niRIXv.

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

11 Proposed Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’ Motions for Preliminary Injunctions

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 18 of 19

1 Dated: March 22, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

Respectfully submitted, /s/ JAMIE S. GORELICK JAMIE S. GORELICK jamie.gorelick@wilmerhale.com CATHERINE M.A. CARROLL catherine.carroll@wilmerhale.com CLAIRE M. BERGERON claire.bergeron@wilmerhale.com SHEILA E. MENZ sheila.menz@wilmerhale.com WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Telephone: (202) 663-6500 Facsimile: (202) 663-6363
12 Proposed Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’ Motions for Preliminary Injunctions

Case 3:17-cv-00485-WHO Document 41-1 Filed 03/22/17 Page 19 of 19

1

2

3

TAHIRIH JUSTICE CENTER 881 SNEATH LANE

4

SUITE 115 SAN BRUNO, CA 94066

5 ASIAN LAW ALLIANCE
6 991 WEST HEDDING STREET SUITE 202
7 SAN JOSE, CA 95126

APPENDIX LIST OF AMICI CURIAE

8 ASIAN PACIFIC INSTITUTE ON GENDER-BASED VIOLENCE 500 12TH STREET
9 SUITE 330 OAKLAND, CA 94607
10 ASISTA
11 P.O. BOX 12 SUFFIELD, CT 06078
12
CASA DE ESPERANZA 13 P.O. BOX 40115 14 ST. PAUL, MN 55104

15

DOLORES STREET COMMUNITY SERVICES 938 VALENCIA STREET

16 SAN FRANCISCO, CA 94110

17 IMMIGRATION CENTER FOR WOMEN AND CHILDREN 634 SOUTH SPRING STREET
18 SUITE 727 LOS ANGELES, CA 90014
19 MAITRI
20 P.O. BOX 697 SANTA CLARA, CA 95052
21 PANGEA LEGAL SERVICES
22 350 SANSOME STREET
SUITE 650 23 SAN FRANCISCO, CA 94104

24

25

26

27

28

Case No. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

Brief for Tahirih Justice Center, et al. as Amici Curiae in Support of Plaintiffs’ Motions for Preliminary Injunction

Case 3:17-cv-00485-WHO Document 41-2 Filed 03/22/17 Page 1 of 3
EXHIBIT 2

Case 3:17-cv-00485-WHO Document 41-2 Filed 03/22/17 Page 2 of 3

1 JAMIE S. GORELICK

2 jamie.gorelick@wilmerhale.com CATHERINE M.A. CARROLL

3 catherine.carroll@wilmerhale.com

CLAIRE M. BERGERON

4 claire.bergeron@wilmerhale.com

SHEILA E. MENZ 5 sheila.menz@wilmerhale.com

6

WILMER CUTLER PICKERING HALE AND DORR LLP

7 1875 Pennsylvania Avenue, NW Washington, D.C. 20006

8 Telephone: (202) 663-6500

Facsimile: (202) 663-6363

9 Attorneys for Amici Curiae

10 UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

12

CITY AND COUNTY OF SAN FRANCISCO,

Case No. 3:17-cv-00485-WHO

13 Plaintiff,

Case No. 3:17-cv-00574-WHO

14

v.

[PROPOSED] ORDER ON MOTION FOR

15 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA, JOHN
16 F. KELLY, Secretary of United States Department

LEAVE TO FILE BRIEF AMICI CURIAE FOR TAHIRIH JUSTICE CENTER, ASIAN LAW ALLIANCE, ASIAN

17

of Homeland Security, JEFFERSON B. SESSIONS, Attorney General of the United States,

PACIFIC INSTITUTE ON GENDER BASED VIOLENCE, ASISTA, CASA DE

18 DOES 1-100, Defendants.

ESPERANZA, DOLORES STREET COMMUNITY SERVICES,

19 COUNTY OF SANTA CLARA,

IMMIGRATION CENTER FOR WOMEN AND CHILDREN, MAITRI, AND

20

Plaintiff,

PANGEA LEGAL SERVICES IN

v.

SUPPORT OF PLAINTIFFS’ MOTIONS

21

FOR PRELIMINARY INJUNCTIONS;

22

DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY, in his official

[PROPOSED] ORDER

23 capacity as Secretary of the United States

Judge: Hon. William H. Orrick

Department of Homeland Security, JEFFERSON B.

24 SESSIONS, in his official capacity as Attorney

General of the United States, JOHN MICHAEL 25 “MICK” MULVANEY, in his official capacity as

26

Director of the Office of Management and Budget, and DOES 1-50,

27

Defendants.

28
Case Nos. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

[Proposed] Order On Motion For Leave To File Brief Amici Curiae

Case 3:17-cv-00485-WHO Document 41-2 Filed 03/22/17 Page 3 of 3

1

2

Good cause appearing, the Motion of Amici Curiae Tahirih Justice Center, et al. for leave to

3 file a brief in support of Plaintiffs’ Motions for Preliminary Injunctions is hereby GRANTED.

4

IT IS SO ORDERED.

5

6 Dated: March _____, 2017 7 8

__________________________________
Hon. William H. Orrick United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Case Nos. 3:17-cv-00485-WHO; 3:17-cv-00574-WHO

[Proposed] Order On Motion For Leave To File Brief Amici Curiae

 
 Case 3:17-cv-00485-WHO Document 43 Filed 03/23/17 Page 1 of 3

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
6 840 Malcolm Road, Suite 200 Burlingame, CA 94010
7 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
8
BRUCE REED GOODMILLER (SBN 121491) 9 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 10 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 11 450 Civic Center Plaza
P.O. Box 4046 12 Richmond, CA 94804
Telephone: (510) 620-6509 13 Facsimile: (510) 620-6518

14 Attorneys for Non-Party City of Richmond

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17
CITY AND COUNTY OF SAN 18 FRANCISCO

19

Plaintiff,

20

vs.

21 DONALD J. TRUMP, President of the United States, UNITED STATES OF
22 AMERICA, JOHN F. KELLY, Secretary of the United States Department of
23 Homeland Security, DANA J. BOENTE, Acting Attorney General of the United
24 States,

Case No. 3:17-cv-00485-WHO
ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL L.R. 3-12(B) and NOTICE OF RELATED CASE PURSUANT TO CIVIL LOCAL RULE 3-13
Complaint Filed: January 31, 2017 No Trial Date

25

Defendants.

26

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES SHOULD BE RELATED AND NOTICE OF RELATED CASES; Case No. 3:17-cv-00485WHO

Case 3:17-cv-00485-WHO Document 43 Filed 03/23/17 Page 2 of 3

1 I. INTRODUCTION

2

Pursuant to Civil Local Rule 3-12(b), Plaintiff City of Richmond (“Richmond”) in the City

3 of Richmond v. Trump, et al. Case No. 3:17-cv-01535-SK filed March 21, 2017 in this Court (“the

4 Richmond Action”), a non-party in this action, respectfully requests that the Court consider

5 whether the actions, City of County of San Francisco v. Trump et al., Case No. 3:17-cv-00485-

6 WHO (“San Francisco Action”) and the Richmond Action, may be related. On February 10,

7 2017, this Court related the San Francisco Action to County of Santa Clara v. Trump et al., Case

8 No. 3:17-cv-00574-WHO (“Santa Clara Action). A copy of the complaints are attached as

9 Exhibit 1 (Richmond Action), Exhibit 2 (San Francisco Action), and Exhibit 3 (Santa Clara

10 Action) to the Declaration of Nancy L. Fineman.

11

Richmond also gives notice pursuant to Civ. L.R. 3-13 that the Richmond Action is related

12 to the San Francisco and Santa Clara actions.

13 II. ARGUMENT

14

“An action is related to another action if: (1) the actions concern substantially the same

15 parties, property, transaction or event; and (2) it appears likely there will be an unduly

16 burdensome duplication of labor and expense or conflicting results if the cases are conducted

17 before different Judges.” Civ. L.R. 3-12(a).

18

The Richmond, San Francisco, and Santa Clara Actions concern substantially the same

19 parties and events. Each Action challenges the constitutionality of Executive Order 13768 issued

20 by defendant Donald J. Trump on January 25, 2017. The three actions make similar

21 constitutional arguments, i.e., that the Executive Order violates the Tenth Amendment and the

22 Separation of Powers clause. Each action sues the President, Attorney General, Secretary of

23 Homeland Security, and the United States of America. Relating the Richmond Action to the San

24 Francisco and Santa Clara Actions will prevent unduly burdensome duplication of labor and

25 expense and/or conflicting results.

26 / / /

27 / / /

28 / / /

ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES

Law Offices

SHOULD BE RELATED AND NOTICE OF RELATED CASES; Case No. 3:17-cv-00485WHO

COTCHETT, PITRE &

1

MCCARTHY, LLP

Case 3:17-cv-00485-WHO Document 43 Filed 03/23/17 Page 3 of 3

1 III. CONCLUSION

2

For the reasons set forth above, Richmond respectfully requests that the Court relate the

3 Richmond Action to the San Francisco and Santa Clara Actions.

4

5 Dated: March 23, 2017

COTCHETT, PITRE & McCARTHY, LLP

6 By: /s/ Nancy L. Fineman
7

8

NANCY L. FINEMAN

Attorneys for Non-Party

9

City of Richmond

10 Dated: March 23, 2017 11 12

CITY OF RICHMOND By: /s/ Bruce Reed Goodmiller

13

BRUCE REED GOODMILLER

Attorneys for Non-Party

14

City of Richmond

15

16

17 ATTESTATION OF FILING

18 I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local Rule

19 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

20 hereto.

21 /s/ Nancy L. Fineman

22

NANCY L. FINEMAN

23

Attorney for Non-Party

24

City of Richmond

25

26

27

28

ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES

Law Offices

SHOULD BE RELATED AND NOTICE OF RELATED CASES; Case No. 3:17-cv-00485WHO

COTCHETT, PITRE &

2

MCCARTHY, LLP

Case 3:17-cv-00485-WHO Document 43-1 Filed 03/23/17 Page 1 of 2

Case 3:17-cv-00485-WHO Document 43-1 Filed 03/23/17 Page 2 of 2

Case 3:17-cv-00485-WHO Document 43-2 Filed 03/23/17 Page 1 of 74

CaseC3a:s1e7-3c:v1-70-0c4v8-051-W53H5O DDocoucmumenetn1t 43F-i2ledF0il3e/d210/31/723/P1a7geP1agoef 322of 74

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
6 840 Malcolm Road, Suite 200 Burlingame, CA 94010
7 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
8 BRUCE REED GOODMILLER (SBN 121491)
9 Bruce_goodmiller@ci.richmond.ca.us RACHEL H. SOMMOVILLA (SBN 231529)
10 rachel_sommovilla@ci.richmond.ca.us CITY OF RICHMOND
11 450 Civic Center Plaza P.O. Box 4046
12 Richmond, CA 94804 Telephone: (510) 620-6509
13 Facsimile: (510) 620-6518

14 Attorneys for Plaintiff

15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

16

CITY OF RICHMOND, a municipal Case No.

17 corporation,

COMPLAINT FOR INJUNCTIVE AND

18

Plaintiff,

DECLARATORY RELIEF CONCERNING

19

vs.

FEDERAL EXECUTIVE ORDER 13768, for

20

DONALD J. TRUMP, President of the United States,

1. VIOLATION OF THE TENTH AMENDMENT;

21 JOHN F. KELLY, Secretary of the

United States Department of Homeland 2. VIOLATION OF THE SEPARATION OF

22 Security, JEFFERSON B. SESSIONS, Attorney

POWERS AND SPENDING CLAUSES;

23 General of the United States, and the UNITED STATES OF AMERICA
24

3. VIOLATION OF THE FOURTH AMENDMENT;

Defendants.

25

4. VIOLATION OF THE DUE PROCESS

CLAUSE BECAUSE OF VAGUENESS;

26

AND

27
28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

5. RULING THAT RICHMOND COMPLIES WITH 8 U.S.C. § 1373.
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

Table of Contents

2

Page

3 I. INTRODUCTION..............................................................................................................1

4 II. JURISDICTION AND VENUE........................................................................................4

5 III. PARTIES ............................................................................................................................4

6 IV. FACTUAL ALLEGATIONS............................................................................................5

7

A. RICHMOND IS A CITY OF IMMIGRANTS AND IMMIGRANTS’ TRUST IN

LAW ENFORCEMENT IS CRITICAL TO THE SAFETY OF THE

8

COMMUNITY ........................................................................................................5

9

B. IMMIGRANTS MAKE RICHMOND STRONG .................................................10

10

C. FEDERAL LAW DOES NOT REQUIRE RICHMOND TO COMPLY WITH

DETAINER REQUESTS ISSUED BY ICE .........................................................10

11

D. THE EXECUTIVE ORDER..................................................................................14

12

E. THE EXECUTIVE ORDER IS UNCONSTITUTIONAL BECAUSE IT

13

EXCEEDS THE AUTHORITY OF THE PRESIDENT AND CONGRESS .......18

14

1. The President Does Not Have the Authority to Issue the Executive

Order ..........................................................................................................18

15

2. Congress Does Not Have the Authority to Take the Actions in the

16

Executive Order .........................................................................................18

17

3. The Executive Order Is Unconstitutional Because It Violates the Tenth

and Fourth Amendments............................................................................20

18

F. INJURY TO RICHMOND CAUSED BY THE EXECUTIVE ORDER ..............21

19

G. THE COURT SHOULD DECLARE THE EXECUTIVE ORDER

20

UNCONSTITUTIONAL AND ENJOIN ENFORCEMENT .................................22

21 V. CLAIMS FOR RELIEF ..................................................................................................23

22 VI. PRAYER FOR RELIEF..................................................................................................29

23

24

25

26

27

28
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_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

i

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1

I. INTRODUCTION

2

1. On January 25, 2017, President Donald J. Trump issued an Executive Order,

3 No. 13768 entitled “Enhancing Public Safety in the Interior of the United States,” 82 Fed.

4 Reg. 8799 (Jan. 25, 2017) (“Executive Order”), which, in violation of the Constitution, seeks to

5 force local police departments, such as the Richmond Police Department, to enforce federal

6 immigration law. A copy of the Executive Order is attached as Exhibit 1.

7

2. The ability of the Richmond police to effectively combat crime will be severely

8 curtailed by this Executive Order. In order to safeguard the safety of its residents and

9 community, the City of Richmond, California (“Richmond”), the plaintiff in this action, engages

10 in community policing. As its Police Chief Allwyn Brown recently explained: The Richmond

11 Police are:

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

“Committed to a proven effective community policing model that knows the unmistakable truth, that community safety is a responsibility for everyone, and not just a job for the police. This requires active, engaged, and empowered neighborhood residents who freely interact with police without reservations.”

3.

The Executive Order is in direct violation of the U.S. Constitution because it

allows the Attorney General and Secretary of Homeland Security, based upon their discretion, to

withhold federal funds from public entities that are jurisdictions who “willfully refuse” to

comply with 8 U.S.C. 1373, a statute which seeks to regulate state and local jurisdictions’

response to immigration requests, and for the Attorney General to take enforcement actions

against any jurisdiction that violates federal law. Our U.S. Supreme Court has said that this use

of an Executive Order to coerce Richmond through a threat of the loss of all federal funds is

unconstitutional. Nat’l Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602-04

(2012). “When, for example, such conditions take the form of threats to terminate other

significant independent grants, the conditions are properly viewed as a means of pressuring the

states to accept policy changes.” 132 S. Ct. at 2604.

4. The term “sanctuary jurisdiction” is not defined in the Executive Order or in any

federal statute or regulation. While many public entities, including Richmond, have been

referred to as “Sanctuary Cities” and Richmond is proud to support its immigrants, the policies

_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1

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1 of the different jurisdictions differ substantially. It is unclear if Richmond will be considered a

2 “sanctuary jurisdiction” subject to the loss of all federal funds. The Executive Order provides

3 no guidance to Richmond on how to make this determination and there is no legal precedent for

4 Richmond to consult to make this determination. Based upon statements made by President

5 Trump and others, Richmond believes it may be swept up as a sanctuary jurisdiction under the

6 Executive Order. The Executive Order violates the Due Process Clause because it is

7 unconstitutionally vague and unenforceable against a city like Richmond, California. Grayned

8 v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298 (1972).

9

5. Moreover, the Executive Order does not define what actions or inaction can be

10 considered by the Attorney General and Secretary of Homeland Security as a willful refusal to

11 comply with 8 U.S.C. § 1373 and there is no legal precedent defining what constitutes a willful

12 refusal to comply with 8 U.S.C. § 1373. Richmond does comply with 8 U.S.C. § 1373. This is

13 an additional reason that the Executive Order is unconstitutionally vague and unenforceable

14 pursuant to Supreme Court precedent.

15

6. Given the vagueness of the Executive Order and the discretion it provides to the

16 Attorney General and Secretary of Homeland Security to withhold federal funds, Richmond

17 faces imminent danger of losing all federal funding because of legislation that it enacted twenty-

18 five years ago to foster trust between its police department and residents. Richmond has already

19 been harmed by the uncertainty caused by the Executive Order. The Defendants intend to

20 immediately begin enforcing the Executive Order, and the Executive Order does not provide any

21 policies or procedures to challenge the findings of the Attorney General or Secretary of

22 Homeland Security. Accordingly, this Court is the only vehicle for Richmond to obtain relief to

23 stop the calamitous effects that the Executive Order will have on Richmond.

24

7. Richmond directly receives federal funds each year and also receives State funds,

25 most of which are passed through federal funds. The funds are used to fund vital services, and

26 only a small amount are used for law enforcement or immigration. Most are used for housing

27 and infrastructure improvements. The loss of these funds will have a direct and substantial

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

effect on Richmond and its citizens. None of the grants of money by the federal government to

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

2

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1 Richmond were conditioned on Richmond’s compliance with any immigration law. The

2 Executive Order seeks to retroactively tie the receipt of federal funds to Richmond’s compliance

3 with the Executive Order, and specifically immigration laws, which is unconstitutional on its

4 face.

5

8. While Presidents have the ability to issue executive orders, the President’s power

6 “must stem either from any act of Congress or from the Constitution itself.” Youngstown Sheet

7 & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S. Ct. 863, 866 (1952). There is no authority from

8 an act of Congress or from the Constitution for President Trump to have issued the Executive

9 Order.

10

9. The Executive Order is an impermissible and illegal order because:

11

(1) the Executive Order violates the Tenth Amendment of the United States

12

Constitution;

13

(2) the Executive Order seeks to give two Cabinet members the unfettered

14

discretion to take away all federal funding from Richmond, a power that no branch of the

15

federal government has;

16

(3) the Executive Order impermissibly usurps the rights of the Legislative

17

branch regarding appropriating and spending monies thus violating the separation of

18

powers clause of the Constitution;

19

(4) the Executive Order violates the due process clause because it is

20

unconstitutionally vague in its definition of “sanctuary jurisdiction,” “willful refusal to

21

comply,” and the unfettered enforcement discretion it gives to the Attorney General and

22

Secretary of Homeland Security;

23

(5) the Executive Order exposes Richmond to liability under the Fourth

24

Amendment of the United States Constitution for improperly detaining people; and

25

(6) the Executive Order imposes additional costs on Richmond to comply

26

with the Executive Order, which costs the federal government will not reimburse.

27

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_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

3

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1

10. In order to protect its residents, Richmond brings this action to have this Court

2 declare that the Executive Order is unconstitutional to find that Richmond complies with 8

3 U.S.C. § 1373, and to enjoin the Executive Order from being enforced against Richmond.

4

II. JURISDICTION AND VENUE

5

13. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court

6 has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and

7 2202 et seq.

8

14. Venue properly lies within the Northern District of California because Plaintiff,

9 Richmond, is a public entity in this judicial district and a substantial part of the events or

10 omissions giving rise to this action will occur or have occurred in this District. 28 U.S.C. §

11 1391(e).

12

III.

PARTIES

13

15. Plaintiff City of Richmond is a municipal corporation organized and existing

14 under and by virtue of the laws of the State of California, and is a Charter Law city. Its

15 population is just over 100,000 people. Under its charter, it has the power to exercise police

16 powers and make all necessary police regulations. Richmond Charter Art. II, § 1, ¶ 6.

17

16. Defendant Donald J. Trump has been since January 20, 2017, the President of

18 the United States. He is sued in his official capacity. As a candidate, he railed against sanctuary

19 cities and promised to punish them, and has consistently made insensitive and false statements

20 about immigrants. When he announced his candidacy in June 2015, for example, he stated:

21 “The U.S. has become a dumping ground for everybody else’s problems. Thank you. It’s true,

22 and these are the best and the finest. When Mexico sends its people, they’re not sending their

23 best. They’re not sending you. They’re not sending you. They’re sending people that have lots

24 of problems, and they’re bringing those problems to us. They’re bringing drugs. They’re

25 bringing crime. They’re rapists. And some, I assume, are good people.” There was no factual

26 support for this statement.

27

17. Defendant John F. Kelly is the Secretary of the Department of Homeland

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Security, a cabinet department of the United States government with the primary mission of

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1 securing borders of the United States. Pursuant to the Executive Order at issue here, Secretary

2 Kelly is responsible for executing relevant provisions of the Executive Order. He is sued in his

3 official capacity.

4

18. Defendant Jefferson B. Sessions is the Attorney General, a cabinet department of

5 the United States Government overseeing the Department of Justice. Attorney General Sessions

6 is responsible for executing relevant provisions of the Executive Order. Attorney General

7 Sessions is sued in his official capacity.

8
9
10 A.
11
12

19. Defendant United States of America is sued under 28 U.S.C. Section 1346. IV. FACTUAL ALLEGATIONS
RICHMOND IS A CITY OF IMMIGRANTS AND IMMIGRANTS’ TRUST IN LAW ENFORCEMENT IS CRITICAL TO THE SAFETY OF THE COMMUNITY

13

20. Incorporated in 1905, Richmond has been a place where people from all over the

14 world have come to seek a better life for themselves and their families and to contribute to the

15 society in the Bay Area. According to the American Community Survey, in 2015, over 30% of

16 Richmond residents were born in foreign counties.

17

21. Richmond, like the rest of the United States, is strong and successful because of

18 the diversity of the immigrants who have come to this country. Their hard work and innovation

19 have made the United States one of the greatest, if not the greatest, countries in the world. The

20 contributions of immigrants are too numerous to even try to list. Most economists agree that

21 immigrants, including those who are undocumented, are good for the U.S. economy. In March

22 2017, the Institution of Taxation & Economic Policy estimated that undocumented workers pay

23 $111.74 billion in taxes each year. In March 2017, the Pew Research Center issued a report

24 demonstrating that immigrants and their U.S.-born children are expected to drive growth in the

25 U.S. working-age population. http://www.pewresearch.org/fact-tank/2017/03/08/immigration-

26 projected-to-drive-growth-in-u-s-working-age-population-through-at-least-2035/. Since the

27 Baby Boomer generation (people born after World War II and before 1965) is heading towards

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1 retirement, there is a potential for the labor force to slow down without immigrants and their

2 children being part of the work force. Richmond and the Bay Area need this work force.

3

22. Richmond has always welcomed newcomers. In the 1940s, for example, people

4 came from all over the United States to help with the war effort by working in Richmond

5 facilities such as the Kaiser shipyards. They and their families stayed and have made positive

6 contributions to Richmond.

7

23. In the late 1980s, Richmond experienced an increase of immigrants arriving from

8 Central America. They sought sanctuary from the violence and political instability in their

9 native countries. Many of these immigrants had been the victims of political persecution. Since

10 they came to Richmond, they and their families have contributed to the success of Richmond.

11 Based upon their experience in their native countries, many of these immigrants were fearful of

12 law enforcement. They were easy prey for criminals who knew the immigrants were unlikely to

13 report crimes against them for fear that if they reported crimes or provided assistance to law

14 enforcement, they would be deported. It is critical to the safety of the community that everyone,

15 no matter their immigration status, trust law enforcement and provide information to keep

16 Richmond safe and free from crime.

17

24. In response to these immigrants’ concerns and to increase public safety, in 1990,

18 over 25 years ago, the Richmond City Council unanimously enacted Ordinance No. 29-90, an

19 ordinance whose purpose was to “foster an atmosphere of trust and cooperation between the

20 Richmond Police Department and all persons, regardless of immigration status, residing in the

21 City of Richmond; …” A true and correct copy of the Ordinance is attached as Exhibit 2.

22

25. Further, Ordinance No. 29-90 provided in pertinent part:

23

Section 2. In order to address the fears expressed by the immigrant and refugee

community in the City of Richmond concerning Immigration and Naturalization

24

Service activities in the City of Richmond while preserving the ability of the

Richmond Police Department to utilize all available resources to fight criminal

25

activity, the Council of the City of Richmond hereby adopts the following policy:

26
27
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1. All officers and employees of the City of Richmond, while acting in their official capacities, who receive any oral or written request from the Immigration and Naturalization Service for information, cooperation or assistance shall refer such request to the City Manager or the Chief of

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1

Police. The City Manager or Chief of Police shall decide whether such information shall be given or whether such cooperation or assistance shall

2

be provided to the Immigration and Naturalization Service. In exercising

their discretion, the City Manager and Chief of Police shall consider the

3

possible disruption and inconvenience that may be experienced by the

immigrant and refugee community in the City of Richmond and any

4

requirements of any federal, state or local law or court decision. Nothing

5

delineated in the foregoing policy shall be construed to prevent the City Manager or the Chief of Police from providing information, assistance or

6

cooperation to the Immigration and Naturalization Service regarding the

criminal violation of any federal, state or local law.

7

8

26. On February 6, 2007, in Resolution No. 11-07, the Richmond City Council

9 reaffirmed its commitment to its residents that the City “welcomes and values all of its residents

10 and supports them to live and work free from discrimination, hostility, abuse, violence,

11 exploitation and fear of local, state and federal law enforcement; …” A true and correct copy of

12 the Resolution is attached as Exhibit 3. In this resolution, the City of Richmond “reaffirms the

13 terms of ordinance No. 20-90 ordering all officers and employees of this City not to inform,

14 assist or cooperate with the Immigration and Customs Enforcement (ICE) formerly known as

15 Immigration and Naturalization Service, without the specific authorization of the Richmond City

16 Manager or the Chief of Police; …”

17

27. The ordinance and regulation were not to prevent the exchange of information

18 between the federal government and Richmond regarding immigration matters, but instead to

19 increase the trust between Richmond law enforcement and the community, thereby increasing

20 public safety. Federal immigration raids, like the 2003 raid on the Richmond home of Porfirio

21 Quintano, an immigrant from Honduras and his family, is but one example of the fear and

22 distrust in the immigrant community caused by improper immigration enforcement. As

23 Quintano explained in the San Francisco Chronicle: “‘We are victims,’ said Quintano, adding

24 that his wife and two daughters, then ages 4 and 10, live in fear of another raid, even though all

25 four family members are U.S. citizens. ‘They were looking for somebody unrelated to us, but

26 they lined us up against the wall and held us for an hour. It was terrifying, especially for our

27 daughters.’” San Francisco Chronicle (Apr. 23, 2007).

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1

28. In the 25 years since the enactment of Ordinance 29-90, the federal government

2 has taken no action until now to stop the Richmond policy, and the policy has served Richmond

3 and the nation well. The Richmond policy co-existed with the immigration policies of both

4 Bush administrations as well as those of Presidents Clinton and Obama. Studies show that trust

5 between law enforcement and those that they serve is key to decreasing crime and to making

6 communities safe. See e.g. Bill O. Hing, “Immigration Sanctuary Policies: Constitutional and

7 Representative of Good Policing and Good Public Policy, 2 U.C. Irvine L. Rev. 247 (2012). The

8 final report of the President’s Task Force on 21st Century Policy (May 2015) explains:

9

Immigrants often fear approaching police officers when they are victims of and

10

witnesses to crimes and when local police are entangled with federal immigration

enforcement. At all levels of government, it is important that laws, policies, and

11

practices not hinder the ability of local law enforcement to build the strong

relationships necessary to public safety and community well-being. It is the view

12

of this task force that whenever possible, state and local enforcement should not

be involved in immigration enforcement. 13

14 The United States Department of Justice, Community Oriented Policy Services (COPS),

15 published a report “Policy in New Immigrant Communities” by Matthew Alysalcowski, Albert

16 Anthony Pearsall III and Jill Pope. The report provides suggestions to law enforcement about

17 better serving the community, focusing on building trust and mutual respect between law

18 enforcement and new immigrants. The report states that putting fears to rest is one of the most

19 useful things law enforcement can do. “For many immigrants, reassurance that they will not be

20 detained or deported removes the fear of reporting crimes.” Report at 11.

21

29. Richmond is not the only public entity to enact laws regarding the relationship

22 between the public entity and ICE. Numerous other California counties and cities, such as

23 Alameda County, Berkeley, Los Angeles County, Los Angeles, Monterey County, Napa County,

24 Orange County, Riverside County, Sacramento County, San Bernardino County, San Diego

25 County, San Francisco City and County, San Mateo County, Santa Ana, Santa Clara County,

26 Santa Cruz County, and Sonoma County, have enacted similar laws. Other cities in the United

27 States, such as Boston, Chicago, Houston, New York, Philadelphia, and Washington D.C., to

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name a few, have also enacted similar laws. Even though they are similar, they are not identical.

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1 There is no way to determine by the language of the Executive Order if any of these jurisdictions

2 are “sanctuary jurisdictions.”

3

30. The State of California also has enacted legislation, specifically Government

4 Code sections 7282 and 7282.5 both effective January 1, 2014, regarding information that law

5 enforcement can provide federal immigration officials. Section 7282.5 provides that a “law

6 enforcement official shall have discretion to cooperate with federal immigration officials by

7 detaining an individual on the basis of an immigration hold after that individual becomes

8 eligible for release from custody only if the continued detention of the individual on the basis of

9 the immigration hold would not violate any federal, state, or local law, or any local policy, and

10 only under ….” certain specified circumstances. The notes to section 7282, which provides

11 definitions for the chapter, sets forth the Legislative Findings for these statutes.

12

SECTION 1. The Legislature finds and declares all of the following:

13 (a) The United States Immigration and Customs Enforcement’s (ICE) Secure

14

Communities program shifts the burden of federal civil immigration enforcement

onto local law enforcement. To operate the Secure Communities program, ICE

15

relies on voluntary requests, known as ICE holds or detainers, to local law

16

enforcement to hold individuals in local jails for additional time beyond when they would be eligible for release in a criminal matter.

17 (b) State and local law enforcement agencies are not reimbursed by the federal

18

government for the full cost of responding to a detainer, which can include, but is

not limited to, extended detention time and the administrative costs of tracking

19

and responding to detainers.

20

21

31. The Department of Justice, under the previous administration, has already

22 identified the State of California as a jurisdiction that does not fully comply with federal

23 immigration enforcement priorities. Memorandum from Michael E. Horowitz, Inspector Gen.,

24 to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs, “Department of

25 Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients,”

26 at 13 (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf (“Horowitz Memorandum”).

27 Since Richmond receives federal funds that are passed through the State of California,

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1 Richmond faces the loss of funds under the Executive Order even if it complies with all

2 requirements of the Executive Order.

3 B. IMMIGRANTS MAKE RICHMOND STRONG

4

32. Immigrants have been, since the establishment of our country, critical to the

5 United States and specifically Richmond. The same false statements being made today about

6 immigrants were made about Italians, Irish, Jews, and other ethnicities in the late 1800’s and

7 early 1900’s.

8

33. In April of 2016, the U.S. Chamber of Commerce published a report entitled

9 Immigration Myths and Faces, www.uschamber.com/reports/immigration-myths. The report

10 demonstrates that most common negative contentions regarding immigrants are false.

11

34. For example, with citation to evidence, the Chamber of Commerce demonstrates

12 that immigrants do not take away jobs from U.S. citizens, do not drive down the wages of the

13 U.S. workers, but to the contrary, immigrants are necessary for the U.S. economy.

14

35. The Chamber also demonstrates that immigrants, even undocumented

15 immigrants, pay taxes. Undocumented immigrants are not eligible for federal public benefit

16 programs like Social Security, Medicaid, Medicare, and food stamps.

17

36. The Chamber report demonstrates that the premise of the Executive Order, that

18 undocumented immigrants commit crimes, is contradicted by the facts. FBI data demonstrates

19 that as the number of undocumented immigrants, tripled from 1990 violent crime declined 48%

20 and property crime declined 41%. A report from the conservative Americas Majority

21 Foundation found that crime rates are lowest in states with the highest immigration growth rates.

22 Immigrants are less likely than people born in the United States to commit crimes or be

23 incarcerated.

24 C. 25

FEDERAL LAW DOES NOT REQUIRE RICHMOND TO COMPLY WITH DETAINER REQUESTS ISSUED BY ICE

26

37. ICE is an agency in the Department of Homeland Security and enforces federal

27 immigration law. Federal law provides specific rules regarding the detention and removal of

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people who do not have the legal right to be in this country.

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38. Not all people living in the United States who are undocumented are subjected to

2 deportation. See e.g. 8 U.S.C. § 1229b(a) (providing Attorney General with discretion to cancel

3 removal of an undocumented immigrant who is otherwise inadmissible or subject to deportation

4 if he or she meets specified requirements); § 1229b(b)(2) (providing Attorney General with

5 discretion to cancel removal and adjust status of an undocumented immigrant who is a victim of

6 domestic violence). There are also other ways that undocumented immigrants can legally stay in

7 the United States.

8

39. ICE often asks local jurisdictions for information about people who have been

9 arrested. Richmond does not have a policy against and would not refuse to categorically to

10 honor these requests, but requires that any request be brought to the attention of the City

11 Manager or Chief of Police, who make a determination about what information will be provided.

12 Richmond Ordinance No. 29-90, Resolution No. 11-07.

13

40. ICE also often issues “detainer requests” to local jurisdictions. These detainer

14 requests ask local law enforcement agencies to continue to detain an immigrant inmate for up to

15 48 additional hours after his or her regularly scheduled release date so that ICE can decide

16 whether to take that individual into custody and initiate removal proceedings. A detainer request

17 is different than a criminal warrant because a detainer request is not issued by a judge based

18 upon a finding of probable cause.

19

41. A public entity has discretion in how it complies with immigration holds. As

20 stated by Flores v. City of Baldwin Park, No. CV 14-9290-MWF(JCx), 2015 U.S. Dist. LEXIS

21 22149, at *11-12 (C.D. Cal. Feb. 23, 2015): “[F]ederal law leaves compliance with immigration

22 holds wholly within the discretion of states and localities. See Galarza v. Szalczyk, 745 F.3d

23 634, 640-43 (3d Cir. 2014) (holding that ‘immigration detainers are requests and not mandatory

24 orders’ and observing that ‘all federal agencies and departments having an interest in the matter

25 have consistently described such detainers as requests’); Immigration Law, 127 Harv. L. Rev.

26 [2593] at, 2596-97 [June 2014] (‘And even if ICE wanted to make detainer enforcement

27 mandatory, prevailing Tenth Amendment jurisprudence—which prohibits ‘command[ing] the

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States’ officers, or those of their political subdivisions, to administer or enforce a federal

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1 regulatory program’—indicates that it could not do so. States are thus free to decide for

2 themselves whether to limit—or even prohibit—the enforcement of detainers.’)” (bracket

3 materials added). As a general matter, ICE has not directed detainer requests to Richmond.

4

42. The fact that a person is an undocumented immigrant does not mean that the

5 person is subject to detention. Most of the time, people who are suspected of being removable

6 are not arrested; arrests only occur in certain circumstances and are only performed by federal

7 officers specifically trained in immigration law. As the Supreme Court has explained:

8

As a general rule, it is not a crime for a removable alien to remain present in the United

9

States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 82 L. Ed. 2d

778 (1984). If the police stop someone based on nothing more than possible

10

removability, the usual predicate for an arrest is absent. When an alien is suspected of

being removable, a federal official issues an administrative document called a Notice to

11

Appear. See 8 U. S. C. § 1229(a); 8 CFR § 239.1(a) (2012). The form does not authorize

12

an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. § 1229(a)(1). If an alien fails to appear,

13

an in absentia order may direct removal. § 1229a(b)(5)(A).

14

The federal statutory structure instructs when it is appropriate to arrest an alien during

the removal process. For example, the Attorney General can exercise discretion to issue a

15

warrant for an alien's arrest and detention “pending a decision on whether the alien is to

16

be removed from the United States.” 8 U. S. C. § 1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial

17

Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency

for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter

18

2011 ICE Memorandum) (describing factors informing this and related decisions). And

if an alien is ordered removed after a hearing, the Attorney General will issue a warrant.

19

See 8 CFR § 241.2(a)(1). In both instances, the warrants are executed by federal officers

20

who have received training in the enforcement of immigration law. See §§ 241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited

21

authority. See 8 U. S. C. § 1357(a). They may arrest an alien for being “in the United

States in violation of any [immigration] law or regulation,” for example, but only where

22

the alien “is likely to escape before a warrant can be obtained.” § 1357(a)(2).

23 Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2505-06 (2012).

24

43. Even though Supreme Court precedent is clear, the Department of Justice, under

25 the prior Presidential Administration, opined that failure to comply with detainer requests

26 violates federal law. Horowitz Memorandum at 7.

27

44. The Richmond Police Department Policy Manual, Policy 428 specifically

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addresses Immigration Violations. A true and correct copy of the policy is attached hereto as

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1 Exhibit 4. It provides that it is the “policy of the Richmond Police Department (RPD) to foster

2 trust and cooperation with all people of the city and to encourage them to communicate with

3 RPD officers without fear of inquiry regarding their immigration status.” Id. § 428.1. “It is also

4 department policy, consistent with its obligations under state and federal law, to adhere to the

5 City of Richmond Ordinance 29-90. This ordinance prohibits the use of City resources to assist

6 in the enforcement of federal immigration laws without the specific authorization of the City

7 Manager or the Chief of Police.” Id.

8

45. The policy does not prohibit assisting ICE. “When assisting ICE at its specific

9 request, or when suspected criminal violations are discovered as a result of inquiry or

10 investigation based on probable cause originating from activities other than the isolated

11 violations of 8 USC § 1304; 8 USC § 1324; 8 USC § 1325 and 8 USC § 1326, the department

12 may assist in the enforcement of federal immigration laws.” Id., § 428.2. The policy provides

13 that the Richmond Police Department “does not conduct immigration ‘sweeps’ or engage in

14 other concerted efforts to identify or detain suspected undocumented individuals.” Id., §

15 428.2.1; see also id., § 428.2.2.

16

46. The policy reiterates the police department’s concern “for the safety of local

17 citizens and thus detection of criminal behavior is of primary interest in dealing with any

18 person.” Id., § 428.4. Arrests should be based upon probable cause and not on arbitrary

19 characteristics, such as race or ethnicity and “all individuals, regardless of their immigration

20 status, must feel secure that contacting law enforcement will not make them vulnerable to

21 deportation.” Id.

22

47. The policy is explicit that: “Nothing in this policy is intended to restrict officers

23 from exchanging legitimate law enforcement information with any other federal, state or local

24 government entity (8 USC § 1373; 8 USC § 1644). Id.

25

48. Thus, Richmond has made a policy decision that the safety of its residents

26 requires trust between its policy department and all residents, whether they are United States

27 citizens, legal residents, or undocumented. Additionally, Richmond’s policy is to comply with

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all laws, including 8 U.S.C. § 1373. Since ICE has not in the past asked Richmond for

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1 information or issued detainer requests, Richmond has not violated 8 U.S.C. § 1373 or any other

2 federal law.

3 D. 4

THE EXECUTIVE ORDER 49. On January 25, 2017, defendant President Donald J. Trump issued Executive

5 Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” That

6 Executive Order was published in the Federal Register on January 30, 2017, at 82 Fed. Reg.

7 8799. It is available on the White House public website (https://www.whitehouse.gov/the-press-

8 office/2017/01/25/Presidential-executive-order-enhancing-public-safety-interior-united), and is

9 attached hereto as Exhibit 1.

10

50. The Executive Order declares, “Sanctuary jurisdictions across the United States

11 willfully violate Federal law in an attempt to shield aliens from removal from the United States.

12 These jurisdictions have caused immeasurable harm to the American people and to the very

13 fabric of our Republic.”

14

51. To address the purported harm caused by Sanctuary Cities, the Executive Order

15 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not

16 receive Federal funds, except as mandated by law.”

17

52. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

18 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision

19 of a State, shall comply with 8 U.S.C. 1373.” 8 U.S.C. § 1373 prohibits local jurisdictions from

20 prohibiting the exchange of information with ICE regarding citizenship or immigration status.

21

53. Section 9(a) of the Executive Order establishes a funding restriction:

22

In furtherance of this policy, the Attorney General and the Secretary, in their

discretion and to the extent consistent with law, shall ensure that jurisdictions that

23

willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

eligible to receive Federal grants, except as deemed necessary for law

24

enforcement purposes by the Attorney General or the Secretary. The Secretary

has the authority to designate, in his discretion and to the extent consistent with

25

law, a jurisdiction as a sanctuary jurisdiction. Id.

26 / / /

27 / / /

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1

54. Section 9(a) of the Executive Order also mandates enforcement action for

2 violations:

3

The Attorney General shall take appropriate enforcement action against any

entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or

4

practice that prevents or hinders the enforcement of Federal law. Id.

5

55. Defendant John F. Kelly, the Secretary of Homeland Security has already begun

6 implementing the Executive Order. On February 20, 2017, he issued two memoranda to

7 implement the Executive Order. The first memorandum is entitled “Enforcement of the

8 Immigration Law to Serve the National Interest.” A true and correct copy of this memorandum,

9 which will be referred to as the “Enforcement Memorandum” can be found at

10 https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-

11 Immigration-Laws-to-Serve-the-National-Interest.pdf and is attached hereto as Exhibit 5. The

12 second memorandum is entitled “Implementing the President’s Border Security and Immigration

13 Enforcement Improvement Policies.” A true and correct copy of this memorandum, which will

14 be referred to as the “Implementation Memorandum” can be found at

15 https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-

16 Border-Security-Immigration-Enforcement-Improvement-Policies.pdf and is attached hereto as

17 Exhibit 6.

18

56. The Enforcement Memorandum does not reference “sanctuary jurisdictions” or

19 provide any guidance about how the Secretary of Homeland Security will use its discretion to

20 determine that a local jurisdiction should lose all federal funds because of that jurisdictions’

21 “failure to comply with applicable Federal Law.”

22

57. The Enforcement Memorandum states that it will be expanding the INA section

23 287(g) Program. This program “allows a qualified state or local law enforcement officer to be

24 designated as an ‘immigration officer’ for purposes of enforcing federal immigration law. Such

25 officers have the authority to perform all law enforcement functions specified in section 287(a)

26 of the INA, including the authority to investigate, identify, apprehend, arrest, detain, and

27 conduct searches authorized by under the INA, under the direction and supervision of the

28

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1 Department.” The program is voluntary; currently 32 law enforcement agencies in 16 states

2 participate.

3

58. The Enforcement Memorandum further provides that: “Department personnel

4 have full authority to arrest or apprehend an alien whom an immigration officer has probable

5 cause to believe is in violation of immigration laws.”

6

59. The Enforcement Memorandum also provides: “I direct the Director of ICE to

7 immediately reallocate any and all resources that are currently used to advocate on behalf of

8 illegal aliens (except as necessary to comply with a judicial order) to the new VOICE [Victims

9 of Immigration Crime Engagement] Office, and to immediately terminate the provision of such

10 outreach or advocacy services to illegal aliens.” [bracketed materials added]

11

60. The Implementation Memorandum primarily deals with the building of a wall

12 between the United States and Mexico, the hiring of additional Border Patrol Agents, and

13 expediting undocumented immigrants to their native countries. The Implementation

14 Memorandum does not provide any guidance regarding the implementation of the Executive

15 Order as it applies to Richmond.

16

61. Since the Executive Order, the Enforcement and Implementation Memoranda,

17 and federal law and regulations do not provide any guidelines to State and local jurisdictions

18 regarding the criteria that will be used to determine when federal funds will be taken away or

19 enforcement actions will be taken, Richmond must try to glean this information from other

20 public statements of Defendants.

21

62. Based upon the public statements of Defendants, they intend to broadly define

22 jurisdictions that do not comply with federal immigration law and to punish those jurisdictions

23 with the withdrawal of all federal funds. Since as early as 2015, when he was a candidate for the

24 Republican nominee for President, Donald Trump railed against “Sanctuary Cities.” As set

25 forth, supra, he called Mexican immigrants rapists, which statement is not supported by the

26 evidence. He promised to punish these jurisdictions.

27

63. Since President Trump’s inauguration, his office has reaffirmed these statements.

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For example, on January 25, 2017, when announcing the issuance of the Executive Order, the

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1 President’s Press Secretary said: “We are going to strip federal grant money from the sanctuary

2 states and cities that harbor illegal immigrants. The American people are no longer going to

3 have to be forced to subsidize this disregard for our laws.”

4

64. A press release from the White House on January 28, 2017 stated that the

5 executive order was going to halt federal funding for “sanctuary cities.” The reference to

6 “sanctuary cities in the Press Release implies that the President considers “sanctuary cities” to

7 be the same as “sanctuary jurisdictions,” which is the term used in the Executive Order. The

8 same conflation between “sanctuary cities” and “sanctuary jurisdictions” occurred in a press

9 release issued by the White house on February 1, 2017 and the term “sanctuary cities” is on the

10 White House website: http://wwwwhitehouse.gov/law-enforcement-community.

11

65. President Trump, during an interview with Bill O’Reilly on February 5, 2017,

12 also referenced “sanctuary cities” rather than “sanctuary jurisdictions” when referring to the

13 Executive Order. He also specifically referred to proposed legislation by the California

14 legislature regarding immigration as “ridiculous” and referred to the “tremendous amounts of

15 money” the federal government gives to California.

16

66. Immediately prior to becoming the Attorney General, Defendant Jefferson B.

17 Sessions, was a U.S. Senator. In July of 2015, he introduced Senate Bill 1842, the “Protecting

18 American Lives Act.” With regards to the bill and in other statements regarding immigration,

19 Attorney General Sessions indicated an intent to punish local jurisdictions, such as Richmond,

20 which had enacted ordinances which demonstrated concern for immigrants.

21

67. Based upon the evidence, it appears there is a substantial probability that

22 Defendants, and each of them, will seek to enforce the unconstitutional Executive Order against

23 Richmond based upon its enactment of Ordinances No. 29-90 and Resolution No. 11-07,

24 Richmond being referred to as a “sanctuary city,” and its large Latino population. While

25 Richmond does not believe that it has willfully refused to follow any federal law, the statements

26 by Defendants imply that simply enacting an ordinance like Ordinance No. 29-90 and

27 Resolution No. 11-07 will provide the basis for Defendants to enforce the Executive Order

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against Richmond.

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1 E. 2

THE EXECUTIVE ORDER IS UNCONSTITUTIONAL BECAUSE IT EXCEEDS THE AUTHORITY OF THE PRESIDENT AND CONGRESS

1. The President Does Not Have the Authority to Issue the Executive Order 3
68. The federal system is a system of checks and balances. Our founders wanted to 4
stop the President from being able to exercise unbridled discretion like the King from whom 5
they had just won their freedom. Therefore, the Constitution limits the power of the President. 6
Under Article I, section 8, clause 1 of the United States Constitution, Congress, not the 7
President, has the authority to appropriate and spend federal monies. President Trump exceeded 8
his constitutional authority by the enactment of the Executive Order because it is not authorized 9
by any act of Congress or the Constitution. Hence, the Executive Order is unconstitutional. 10
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S. Ct. 863, 866 (1952). 11
69. The President may also not unilaterally impose new restrictions on jurisdictions’ 12
eligibility for federal funding because any restrictions on federal funds must be done so in 13
advance by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 171 101 S. Ct. 14
1531 (1981). The President may not on his own impose restrictions when Congress has not 15
acted. The President does not have “unilateral power to change the text of duly enacted 16
statutes.” Clinton v. City of New York, 524 U.S. 417, 447 (1998). 17

2. Congress Does Not Have the Authority to Take the Actions in the Executive

18

Order

19

70. The Executive Order is also unconstitutional because not even Congress would

20 have the authority to enact the Executive Order as legislation.

21

71. Once Congress has authorized money to a State, county or city and it has been

22 accepted, Congress cannot impose new conditions on the receipt of the monies. The taking

23 away of funds violates the Spending Clause by imposing new funding conditions on existing

24 appropriations of federal funds. “[I]f Congress intends to impose a condition on the grant of

25 federal moneys, it must do so unambiguously,” in advance. Pennhurst State Sch. & Hosp. v.

26 Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531 (1981) “The legitimacy of Congress’ power to

27 legislate under the spending power . . . rests on whether the State voluntarily and knowingly

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accepts” Congress’s conditions. Id. “There can, of course, be no knowing acceptance if a State

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1 is unaware of the conditions or is unable to ascertain what is expected of it.” Id. The Executive

2 Order thus violates the Spending Clause because it seeks to take away monies already

3 authorized and accepted by Richmond.

4

72. Further, even if Congress enacted legislation paralleling the Executive Order, the

5 legislation would be unconstitutional because Congress cannot impose conditions to the

6 acceptance of federal funds when those conditions are unrelated to the purpose for which the

7 funds are given. See South Dakota v. Dole, 483 U.S. 203, 208-09 & n.3 (1987) (“[T]he imposition

8 of conditions under the spending power” must be ‘germane’ or ‘related’ to the purpose of federal

9 funding.”). The Executive Order threatens the loss of all federal funds, not only those related to the

10 purposes of the Executive Order, which purpose is related to immigration.

11

73. The Executive Order’s threat to strip Richmond of all federal funds and bring

12 enforcement actions against it for violation of Federal laws is also unconstitutional. Congress

13 also cannot use coercion or a “power akin to undue influence” to force States, counties or cities

14 to act in accordance with federal policies. Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519,

15 132 S. Ct. 2566, 2602 (2012).

16

74. Under the United States’ Constitution, Congress cannot compel state officials to

17 execute federal law. Printz v. United States, 521 U.S. 898, 138 L. Ed. 2d 914, 117 S. Ct. 2365

18 (1997). “In providing for a stronger central government, therefore, the Framers explicitly chose

19 a Constitution that confers upon Congress the power to regulate individuals, not States. As we

20 have seen, the Court has consistently respected this choice. We have always understood that

21 even where Congress has the authority under the Constitution to pass laws requiring or

22 prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit

23 those acts.” New York v. United States, 505 U.S. 144, 166, 112 S. Ct. 2408, 2423 (1992). The

24 Executive Order violates these principles of federalism and state sovereignty and is

25 unconstitutional.

26 / / /

27 / / /

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3. The Executive Order Is Unconstitutional Because It Violates the Tenth and Fourth Amendments
75. The Executive Order is also unconstitutional because it violates the Tenth Amendment of the Constitution. The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This Amendment preserves the sovereignty of the States and local governments, but the Executive Order seeks to interfere with the States’ and local jurisdictions’ sovereignty.
76. The Executive Order is also unconstitutional because it forces jurisdictions to keep people in custody who otherwise would be released, thus potentially exposing the jurisdictions to liability under the Fourth Amendment. This is not an idle concern. Public entities may be liable under the Fourth Amendment for honoring an ICE civil detainer request. Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014); see Morales v. Chadbourne, 793 F.3d 208, 215-216 (1st Cir. 2015); Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S. Dist. LEXIS 2438, at *23-24 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 165 F. Supp. 3d 861, 887 (N.D. Cal. 2016).
77. The federal government has made clear that the local agency bears the financial burden of the detention, providing that “[n]o detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal obligation on the part of the Department.” 8 C.F.R. § 287.7(e). The federal government also will not indemnify local governments or its officials against constitutional claims, even when they arise directly out of actions the local government has taken at the direction of the federal government.
78. The Executive Order is unconstitutional because it coerces Richmond to implement federal immigration policy. The Executive Order provides that federal funds will be withheld from jurisdictions that failed to comply with federal law, including specifically 8 U.S.C. § 1373. Executive Order, § 9(a). However, nothing in 8 U.S.C. § 1373 conditions any federal funding on complying with 8 U.S.C. § 1373 and no federal funds which Richmond receives are conditioned with Richmond complying with 8 U.S.C. § 1373. In fact, in light of the

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1 plain language of the statute, there can be no requirement that as a condition of receiving federal

2 funds, a jurisdiction comply with 8 U.S.C. § 1373. If the Executive Order is allowed to stand,

3 its implementation would impermissibly intrude on Richmond’s exercise of powers conferred

4 upon it by the State of California, and would unlawfully restrict Richmond’s ability to shape

5 local government according to Richmond’s needs and policy mandates of its residents.

6 F. 7

INJURY TO RICHMOND CAUSED BY THE EXECUTIVE ORDER 79. The Executive Order has created fear and confusion regarding the actions that

8 Defendants Attorney General Sessions and Secretary of Homeland Security Kelly, acting on

9 behalf of Defendant United States, will take against state and local governments, like Richmond,

10 who have enacted ordinances to promote trust between law enforcement and the community.

11

80. Richmond has been forced to expend resources as a result of the Executive Order

12 because the Executive Order has created an atmosphere of fear and distrust in the immigrant

13 community. The positive effects created by Ordinance No. 29-90 and Resolution No. 11-07 in

14 the relationship between law enforcement and the immigrant community have started to

15 dissipate as a result of the Executive Order. The Executive Order has the effect of discouraging

16 immigrants from reporting crimes and cooperating with law enforcement, which harms public

17 safety.

18

81. Richmond has also been forced to expend resources to determine how it will

19 provide vital municipal services if Defendant Attorney General Sessions and/or Defendant

20 Secretary of Homeland Security Kelly, acting on behalf of Defendant United States, use their

21 unbridled discretion, and determine that Richmond is a “sanctuary jurisdiction,” which has

22 willfully violated federal law, and then withhold federal funds.

23

82. Richmond is dependent on federal and state funds to provide critical services to

24 its residents. From July 1, 2013 through June 30, 2014, it received over $28 million in federal

25 funds. For the same period, it received over $18 million in state funds, many of these funds are

26 pass-through federal funds. In a report prepared by the California State Controller in July 2016,

27 found at http://www.sco.ca.gov/Files AUD/07_2016_richmond_state_and_federal_

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expenditures.pdf, the Controller breaks down the federal funds.

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1

83. For fiscal year 2016-2017, Richmond has been granted federal grants for street

2 improvements, community oriented policing, low income public housing, housing choice

3 voucher programs, home repairs, and other services.

4

84. Richmond’s fiscal year runs from July 1 until June 30. Richmond begins its mid-

5 year budget review in February of each year and holds its first budget hearings for the upcoming

6 year in March. The City Council reviews and discusses the budget in May and June with final

7 approval of the budget in early July. Thus, Richmond is in the midst of its budget process.

8 Richmond is already facing budget issues and the potential that Richmond may be declared a

9 “sanctuary jurisdiction” and have all federal funding stopped is causing uncertainty to

10 Richmond’s budget. Richmond is facing the prospect of sweeping cuts if federal funding ends.

11 Richmond has no alternative source of funding or reserves to make-up for the loss of federal

12 funding and, therefore, the loss of federal funding would be immediate and devastating to

13 Richmond and its residents.

14

85. The Executive Order’s threat to cut federal funds is manifestly coercive and,

15 therefore unconstitutional. The Executive Order’s direction to the Attorney General to take

16 “appropriate enforcement action against any entity … which has in effect a statute, policy or

17 practice that prevents or hinders the enforcement of Federal law” presents an immediate harm to

18 Richmond. Richmond needs to make budget decisions regarding next year’s budget without

19 having any direction about whether it complies with the Executive Order or whether the

20 Executive Order will be enforced against Richmond and, if so, in what manner.

21 G. 22

THE COURT SHOULD DECLARE THE EXECUTIVE ORDER UNCONSTITUTIONAL AND ENJOIN ENFORCEMENT

23

86. There exists a present controversy between Defendants and Richmond because,

24 based upon statements made by Defendants, Defendants, for purposes of enforcing the Executive

25 Order, consider Richmond a sanctuary jurisdiction which is willfully violating the law.

26 Richmond has been considered a Sanctuary City, but it believes that its ordinances comply with

27 the law and permissibly use the discretion granted to Richmond by the United States Constitution

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and judicial precedent to make decisions regarding the safety of its community. Richmond

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1 believes it complies with 8 U.S.C. § 1373. The Executive Order is unconstitutionally vague in

2 that it fails to tell Richmond what it must do or not do to retain federal funds. There are no

3 administrative remedies that Richmond can seek under the Executive Order. Therefore,

4 Richmond seeks a declaration that the Executive Order is unconstitutional and unenforceable and

5 also that Richmond believes it complies with 8 U.S.C. § 1373. This judicial declaration is

6 necessary and appropriate at this time because of the imminent and irreparable harm that

7 Richmond will face if the Executive Order is implemented against Richmond and all federal

8 funds are cut off.

9

87. Richmond has no adequate or speedy remedy at law to stop the conduct of

10 Defendants because the Executive Order provides no procedure for review or appeal. This action

11 is Richmond’s only way of securing prospective relief. Richmond has suffered actual harm by

12 the issuance of the Executive Order and will continue to suffer extreme hardship and impending

13 irreparable injury if the Executive Order is enforced because the Executive Order is

14 unconstitutional and impermissibly seeks to take away Richmond’s federal funding. The loss of

15 federal funding on Richmond would be devastating. Therefore, Richmond seeks a temporary,

16 preliminary, and permanent injunction enjoining the enforcement of the Executive Order against

17 Richmond. 18 19 20 21

V. CLAIMS FOR RELIEF (All Claims Are Against All Defendants)
FIRST CLAIM FOR RELIEF
For Injunctive and Declaratory Relief Based on Violation of the Tenth Amendment

22

88. Plaintiff repeats and incorporates by reference each allegation of the prior

23 paragraphs as if fully set forth herein.

24

89. The Tenth Amendment preserves state’s and local government’s sovereignty and

25 limits the federal government’s ability to control local governments’ actions. Under the Tenth

26 Amendment, “Congress may not simply commandeer the legislative process of the States by

27 directly compelling them to enact and enforce a federal regulatory program.” New York v.

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United States, 505 U.S. 144, 161, 112 S. Ct. 2408 (1992) (internal quotation omitted). “The

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1 commandeering cases involve attempts by Congress to direct states to perform certain functions,

2 command state officers to administer federal regulatory programs, or to compel states to adopt

3 specific legislation.” Raich v. Gonzales, 500 F.3d 850, 867 n. 17 (9th Cir. 2007). The Executive

4 Order violates the Tenth Amendment.

5

90. The Tenth Amendment applies to Richmond. Printz v. United States, 521 U.S.

6 898, 931, n. 15, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997); City of Santa Cruz v. Gonzales, No.

7 C 03-01802 JF, 2007 U.S. Dist. LEXIS 66414 (N.D. Cal. Aug. 30, 2007).

8

91. The Executive Order exceeds the power of the President or any federal branch of

9 government because the Executive Order requires state and local governments to affirmatively

10 assist federal immigration officials by, inter alia, complying, at their own expense, with ICE

11 detainer requests. In Section 9(a) of the Executive Order, the “Attorney General shall take

12 appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in

13 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal Law.” By

14 demanding that state and local governments, including Richmond, detain individuals who may

15 be subject to removal at the request of federal officials even if those individuals would otherwise

16 be subject to release from custody and by ordering the Attorney General to take enforcement

17 action against state and local governments which do not comply, the Executive Order

18 commandeers state and local officials in furtherance of a federal regulatory program in violation

19 of the Tenth Amendment to the United States Constitution.

20

92. The Executive Order also requires that state and local governments take action to

21 avoid preventing or hindering the federal government in the enforcement of Federal law.

22 Executive Order, § 9(a). This requirement forces local officials to act as an arm of the federal

23 government, which violates the Tenth Amendment. The federal government cannot use the

24 appropriation of money as a threat to coerce Richmond to act in a certain way. This use of an

25 Executive Order to coerce Richmond through a threat of the loss of all federal funds is

26 unconstitutional. Nat’l Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602-04

27 (2012).

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1

93. The Executive Order further impermissibly seeks to interfere with Richmond’s

2 policy decisions in enacting Ordinance No. 29-90 and Resolution No. 11-07, which further

3 legitimate local concerns and interests. This federal interference impermissibly penalizes state

4 and local governments that are deemed to “prevent or hinder” the enforcement of federal law

5 and thus impermissibly coerces state and local governments to adopt policies and practices that

6 support the Executive Order to the subordination of state and local government interests.

7

94. The Executive Order additionally interferes with Richmond’s ability to budget.

8 If it is forced to keep people in custody as a result of an ICE detention request, Richmond must

9 pay for these additional costs to detain. These costs are hundreds of dollars per day. If

10 Richmond is forced to incur these costs, it will have less money to spend on services for its

11 residents.

12

95. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

13 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

14 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

15

WHEREFORE, Richmond prays for relief as hereinafter set forth.

16

SECOND CLAIM FOR RELIEF

17

For Injunctive and Declaratory Relief Based on the Separation of Powers

And Spending Clauses 18

19

96. Plaintiff repeats and incorporates by reference each allegation of the prior

20 paragraphs as if fully set forth herein.

21

97. The Executive Order Section 2(c) states: “It is the policy of the executive branch

22 to . . . Ensure that jurisdictions that fail to comply with applicable Federal law do not receive

23 Federal funds, except as mandated by law.” It further states in Section 9 that: “It is the policy of

24 the executive branch to ensure, to the fullest extent of the law, that a State, or a political

25 subdivision of a State, shall comply with 8 U.S.C. 1373.”

26

98. If defendant Attorney General Sessions or defendant Secretary of Homeland

27 Security Kelly, in the discretion of either one of them, determines that a “sanctuary jurisdiction”

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who fully refuses to comply with 8 U.S.C. § 1373, they must ensure that the jurisdiction is not

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1 “eligible to receive federal grants, except as deemed necessary for law enforcement purposes.”

2 Executive Order § 9.

3

99. The Executive Order provides that the Attorney General “shall take appropriate

4 enforcement action against any entity that violates 8 U.S.C. § 1373 or has in effect a statute

5 policy or practice that prevents or hinders the enforcement of Federal law.” Executive Order §

6 9.

7

100. The President does not have the authority to issue the Executive Order because

8 the Executive Order is not authorized by the Constitution or Congress.

9

101. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

10 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

11 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

12

WHEREFORE, Richmond prays for relief as hereinafter set forth.

13

THIRD CLAIM FOR RELIEF

14

For Injunctive and Declaratory Relief Based on Violation of Fourth Amendment

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102. Plaintiff repeats and incorporates by reference each allegation of the prior

paragraphs as if fully set forth herein.

103. The Fourth Amendment prohibits unreasonable search and seizure, which

includes keeping people in custody who otherwise would be released.

104. The Executive Order requires Richmond to keep people in custody who would

otherwise be released. Richmond and its law enforcement officials will not have probable cause

to keep these people in custody.

105. Therefore, Richmond may be liable under the Fourth Amendment for honoring

an ICE civil detention request. Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST,

2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014); see Morales v. Chadbourne, 793 F.3d

208, 215-216 (1st Cir. 2015); Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S.

Dist. LEXIS 2438, at *23-24 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 165 F. Supp. 3d 861,

887 (N.D. Cal. 2016). Further, the federal government has made clear that Richmond will bear

all responsibility for the additional detention costs and potential liability.

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106. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

2 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

3 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

4

WHEREFORE, Richmond prays for relief as hereinafter set forth.

5

FOURTH CLAIM FOR RELIEF

6

For Injunctive and Declaratory Relief Based on Violation of Due

Process Clause Because of Vagueness 7

8

107. Plaintiff repeats and incorporates by reference each allegation of the prior

9 paragraphs as if fully set forth herein.

10

108. The Executive Order is unconstitutionally vague in violation of the Due Process

11 Claim, the Fifth Amendment of the Constitution.

12

109. A federal law is unconstitutionally vague if it “fails to provide a person of

13 ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or

14 encourages seriously discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304,

15 128 S. Ct. 1830, 1845 (2008). This standard applies to Executive Orders. See United States v.

16 Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002). “It is a basic principle of due process that an

17 enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of

18 Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298 (1972); see also Desertrain v. City of L.A.,

19 754 F.3d 1147, 1155-56 (9th Cir. 2014).

20

110. The Executive Order is unconstitutionally vague and, therefore, unconstitutional.

21 It fails to define key terms, such as “sanctuary jurisdiction” and the term is not defined in any

22 federal law or regulation. Although Richmond and numerous other jurisdictions have been

23 referred to as “sanctuary cities,” there is no common definition of a sanctuary city and there are

24 differences between the ordinances and policies of the different jurisdictions referred to as

25 “sanctuary cities.” The fact that a public entity has been referred to as a sanctuary city or that it

26 has enacted legislation about immigration policies does not mean that it is a “sanctuary

27 jurisdiction” under the Executive Order. No jurisdiction can determine by the language of the

28
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Executive Order if it is a “sanctuary jurisdiction” subject to the Executive Order.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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111. The Executive Order is also unconstitutionally vague and, therefore,

2 unconstitutional, because it does not define what actions or inactions constitute “willful refusal

3 to comply with 8 U.S.C. § 1373.” The Executive Order gives unfettered discretion to the

4 Attorney General and Secretary of Homeland Security without providing any rules or guidance

5 on how that discretion should be exercised. The Executive Order is, therefore unconstitutionally

6 vague. United States v. Williams, 553 U.S. at 304; Grayned v. City of Rockford, 408 U.S. at

7 108. The Executive Order is impermissibly vague because it allows resolution on an ad hoc and

8 subjective basis, with the attendant dangers of arbitrary and discriminatory application. See

9 Grayned v. City of Rockford, 408 U.S. at 109.

10

112. An additional reason that the Executive Order is unconstitutionally vague is that it

11 does not define what is meant by the phrase: “Ensure that jurisdictions that fail to comply with

12 applicable Federal law do not receive Federal funds, except as mandated by law.” Richmond does

13 not know, with respect to the Executive Order, what “applicable Federal law means.” There is no

14 way for Richmond to know whether the “applicable Federal law” is only 8 U.S.C. § 1373, all

15 immigration laws or all federal laws.

16

113. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

17 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

18 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

19

WHEREFORE, Richmond prays for relief as hereinafter set forth.

20

FIFTH CLAIM FOR RELIEF

21

For a Declaration that Richmond Complies With 8 U.S.C. § 1373

22 23 24 25 26 27 28
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114. Plaintiff repeats and incorporates by reference each allegation of the prior

paragraphs as if fully set forth herein.

115. Richmond contends that it complies with 8 U.S.C. § 1373. Specifically, the

Richmond Police Department Policy Manual provides that nothing in Section 428 of the Manual

regarding immigration violations “is intended to restrict officers from exchanging legitimate law

enforcement information with other federal, state or local government entity (8 U.S.C. § 1373; 8

U.S.C. § 1644).”

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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116. Richmond believes that Defendants contend that Richmond does not comply with

2 8 U.S.C. § 1373.

3

117. An actual controversy thus presently exists between Richmond and Defendants

4 about whether Richmond complies with 8 U.S.C. § 1373. A judicial determination resolving

5 this controversy is necessary and appropriate at this time.

6

WHEREFORE, Richmond prays for relief as hereinafter set forth.

7

VI. PRAYER FOR RELIEF

8

Wherefore, the City of Richmond prays for the following relief:

9

1. For a declaration that the Executive Order is unconstitutional because it violates the

10 Tenth Amendment, violates the separation of powers clause of the U.S. Constitution, violates the

11 spending clause of the U.S. Constitution, is unconstitutionally coercive, violates the Fourth

12 Amendment of the U.S. Constitution, and/or is unconstitutionally vague;

13

2. For a declaration that Richmond complies with 8 U.S.C. § 1373;

14

3. Temporarily, preliminarily and permanently enjoin the named Defendants from

15 enforcing the Executive Order against the City of Richmond;

16

4. Award the City of Richmond reasonable costs and attorney’s fees; and

17

5. Grant any other further relief that the Court deems fit and proper.

18

19 Dated: March 21, 2017

COTCHETT, PITRE & McCARTHY, LLP

20 21 22 23 Dated: March 21, 2017 24

By: /s/ Joseph W. Cotchett
JOSEPH W. COTCHETT Attorneys for Plaintiff
CITY OF RICHMOND

25

By: /s/ Bruce Reed Goodmiller

26

BRUCE REED GOODMILLER

27

Attorneys for Plaintiff

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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ATTESTATION OF FILING

2

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local

3 Rule 5-1(i)(3) that concurrence to the filing of this document has been obtained from each

4 signatory hereto.

5

/s/ Nancy L. Fineman

6

NANCY L. FINEMAN

7

Attorney for Plaintiff

8

9

10

11

12

13

14

15

16

17

18

19

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21

22

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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Case 3:17-cv-00485-WHO Document 43-3 Filed 03/23/17 Page 1 of 58

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1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

Plaintiff,

FIRST AMENDED COMPLAINT FOR

19

DECLARATORY AND INJUNCTIVE RELIEF

vs.

20

Trial Date: Not set

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

24

Defendants.

25

26

27

28

First Amended Complaint; Case No. 3:17-cv-00485-WHO

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1

INTRODUCTION

2

1. In blatant disregard of the law, the President of the United States seeks to coerce local

3 authorities to bend to his will and abandon “Sanctuary City” laws and policies. To that end, on

4 January 25, 2017, the President issued an Executive Order entitled “Enhancing Public Safety in the

5 Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Executive

6 Order”). The Executive Order announces that it is the Executive Branch’s policy to withhold federal

7 funds from “sanctuary jurisdictions,” directs the Attorney General and Secretary of Homeland Security

8 to ensure that sanctuary jurisdictions do not receive federal grants, and directs the Attorney General to

9 take enforcement action against any local entity that “hinders the enforcement of Federal law.” The

10 Executive Order undermines established principles of federalism and separation of powers, violates

11 the United States Constitution, and impermissibly threatens cities with catastrophic financial

12 consequences.

13

2. The President and San Francisco agree that the City and County of San Francisco

14 (“San Francisco”) is a Sanctuary City, but disagree about what that means. San Francisco laws limit

15 when city employees and agencies may assist with the enforcement of federal immigration law. These

16 laws generally prohibit city employees from using city funds or resources to assist in the enforcement

17 of federal immigration law, unless required by federal or state law. They specifically prohibit local law

18 enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer

19 requests, which are voluntary, and limit when local law enforcement officers may give ICE advance

20 notice of a person’s release from local jail.

21

3. Like many other cities, San Francisco is a city of immigrants—many of whom are

22 undocumented—who come here to live, work, and raise families. San Francisco’s Sanctuary City laws

23 make San Francisco safer, healthier, and economically stronger. San Francisco is safer when all

24 people, including undocumented immigrants, feel safe reporting crimes. San Francisco is healthier

25 when all residents, including undocumented immigrants, access public health programs. And

26 San Francisco is economically and socially stronger when all children, including undocumented

27 immigrants, attend school. Using city and county resources for federal immigration enforcement

28 breeds distrust of local government and officials who have no power to change federal laws, and can

First Amended Complaint; Case No. 3:17-cv-00485-WHO 1

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1 also wrench apart family and community structures that support residents and thus conserve resources.

2 For these reasons, among others, San Francisco has directed its employees and officers not to assist the

3 Federal government in enforcing federal immigration law, with limited exceptions.

4

4. San Francisco faces the imminent loss of more than $2 billion in federal funds and

5 impending enforcement action if it does not capitulate to the President’s demand that it help enforce

6 federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat.

7

5. The threat San Francisco faces now is particularly troubling given that San Francisco

8 already complies with all federal immigration laws. The Executive Order relies on Title 8, Section

9 1373 of the United States Code (“Section 1373”), which provides that local governments may not

10 prohibit or restrict any government entity or official from “sending to, or receiving from, [federal

11 immigration officials] information regarding the citizenship or immigration status . . . of any

12 individual.”

13

6. San Francisco’s laws comply with Section 1373. San Francisco previously prohibited

14 employees and officials from sharing information regarding immigration status but amended this

15 language to ensure compliance with Section 1373. Under current law, San Francisco does not prohibit

16 or restrict its employees from sharing information about the citizenship or immigration status of any

17 individual with federal immigration officials. Section 1373 has thus already undermined San

18 Francisco’s Sanctuary City laws and intruded into its sovereign power to govern the official actions of

19 its officers and employees. San Francisco will bend no further.

20

7. The Executive Order is a further and more severe invasion of San Francisco’s

21 sovereignty. The Executive Order not only interferes with San Francisco’s ability to direct the official

22 actions of its officers and employees but also threatens new consequences for failing to comply with

23 Section 1373. In this action, San Francisco seeks declaratory relief that Section 1373 and the

24 Executive order are unconstitutional on their face and as applied to state and local Sanctuary City laws

25 such as San Francisco’s. The Executive Branch may not commandeer state and local officials to

26 enforce federal law.

27

8. The Constitution establishes a balance of power between the state and Federal

28 governments, as well as among the coordinate branches of Federal government, to prevent the

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1 excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from

2 any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated

3 to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

4 respectively, or to the people.” This state sovereignty extends to political subdivisions of the State,

5 including cities and counties such as San Francisco.

6

9. This lawsuit is about state sovereignty and a local government’s autonomy to devote

7 resources to local priorities and to control the exercise of its own police powers, rather than being

8 forced to carry out the agenda of the Federal government. Under the Constitution and established

9 principles of federalism, state and local governments have this autonomy. The Executive Order

10 purports otherwise to wrest this autonomy from state and local governments, and a court order is

11 needed to resolve this controversy.

12

10. This lawsuit is also about the separation of powers established by Article 1, Section 8

13 of the Unites States Constitution. Congress, not the Executive Branch, has the authority to determine

14 how federal funds will be spent.

15

11. San Francisco recognizes that there will be additional developments related to the

16 Executive Order in the weeks and months to come. But the consequences threatened by the Executive

17 Order are too severe for San Francisco to wait. The Executive Order threatens funds that support vital

18 services, the loss of community trust, and the loss of San Francisco’s sovereign authority to set and

19 follow its own laws on matters appropriately and historically within the control of local government.

20 San Francisco has no choice but to seek the intervention of this Court to ensure that its rights and

21 residents are protected, and that the Administration complies with Federal law and the Constitution.

22

12. San Francisco seeks declaratory and injunctive relief against the United States of

23 America and the above-named federal officials for violating the Tenth Amendment, U.S. Const.

24 amend. X. San Francisco further seeks a declaration that it complies with Title 8, Section 1373 of the

25 United States Code (“Section 1373”) under the Declaratory Judgment Act, 28 U.S.C. Sections 2201

26 and 2202 et seq.

27 //

28 //

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1

JURISDICTION AND VENUE

2

13. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

3 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

4 seq.

5

14. Venue properly lies within the Northern District of California because Plaintiff,

6 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

7 rise to this action occurred in this District. 28 U.S.C. § 1391(e).

8

PARTIES

9

15. Plaintiff San Francisco is a municipal corporation organized and existing under and by

10 virtue of the laws of the State of California, and is a charter city and county.

11

16. Defendant Donald J. Trump is the President of the United States. He is sued in his

12 official capacity.

13

17. Defendant United States of America is sued under 28 U.S.C. Section 1346.

14

18. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the

15 United States Federal government with the primary mission of securing the United States. Defendant

16 John F. Kelly is the Secretary of DHS. Secretary Kelly is responsible for executing relevant provisions

17 of the Executive Order. Secretary Kelly is sued in his official capacity.

18

19. The Attorney General (“AG”) is a cabinet department of the United States Federal

19 government overseeing the Department of Justice. Defendant Jefferson B. Sessions is the Attorney

20 General. Attorney General Sessions is responsible for executing relevant provisions of the Executive

21 Order. Attorney General Sessions is sued in his official capacity.1

22

20. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the

23 true names or capacities of said Defendants, who were responsible for the alleged violations alleged,

24 but pray that the same may be alleged in this complaint when ascertained.

25 //

26 //

27 1 Attorney General Sessions assumed office on February 9, 2017, thereby replacing Acting
28 Attorney General Dana J. Boente as a defendant, pursuant to Fed. R. Civ. P. 25(d).

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1

FACTUAL ALLEGATIONS

2 I. SAN FRANCISCO’S SANCTUARY CITY LAWS

3

21. San Francisco has been a Sanctuary City since 1989. In the 1980s, thousands of Central

4 American refugees fled countries in the midst of violent civil wars to seek legal protection in the

5 United States. Against the backdrop of this humanitarian crisis, San Francisco began enacting the

6 ordinances that, as later amended, make up San Francisco’s Sanctuary City laws.

7

22. Numerous other municipalities have also enacted Sanctuary City laws. Although the

8 details of their ordinances differ, all of these jurisdictions have adopted laws or policies that limit

9 using local resources to implement and enforce federal immigration laws.

10

23. Today, San Francisco’s body of Sanctuary City law is contained in two chapters of

11 San Francisco’s Administrative Code: Chapters 12H and 12I. Importantly, these chapters do not

12 protect criminals or prevent people from being prosecuted for illegal acts. Instead, they protect

13 children by ensuring that their parents feel safe taking them to playgrounds, to schools, and to

14 hospitals. They support family stability and community engagement. And they protect the safety and

15 health of all residents of San Francisco by helping to ensure that everyone, including undocumented

16 immigrants, feels safe reporting crimes, cooperating with police investigations, and seeking medical

17 care.

18

24. San Francisco Administrative Code Chapter 12H—the full text of which is attached as

19 Exhibit 1—prohibits San Francisco departments, agencies, commissions, officers, and employees from

20 using San Francisco funds or resources to assist in the enforcement of Federal immigration law or to

21 gather or disseminate information regarding the release status, or other confidential identifying

22 information, of an individual unless such assistance is required by Federal or state law.

23

25. Chapter 12H previously prohibited disseminating information regarding the

24 immigration status of any individual, but the Board of Supervisors amended Chapter 12H in July 2016

25 to, inter alia, delete that prohibition in order to ensure compliance with Section 1373.

26

26. San Francisco Administrative Code Chapter 12I—the full text of which is attached as

27 Exhibit 2—prohibits San Francisco law enforcement officials from detaining an individual who is

28 //

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1 otherwise eligible for release from custody on the basis of a civil immigration detainer request issued

2 by the Federal government.2

3

27. A detainer request is distinct from a criminal warrant, which San Francisco honors

4 consistent with its Sanctuary City laws. A detainer request is not issued by a judge based on a finding

5 of probable cause. It is simply a request by ICE that a state or local law enforcement agency hold

6 individuals after their release date to provide ICE agents extra time to decide whether to take those

7 individuals into federal custody and then deport them.

8

28. Complying with detainer requests requires municipalities to commit scarce law

9 enforcement personnel and resources to track and respond to requests, detain individuals in holding

10 cells, and supervise and feed individuals during the prolonged detention. And the Federal government

11 has made clear that the local agency bears the financial burden of the detention, providing that “[n]o

12 detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal

13 obligation on the part of the Department.” 8 C.F.R. § 287.7(e).

14

29. Further, complying with civil immigration detainer requests, in the absence of a

15 probable cause determination, violates the Fourth Amendment to the United States Constitution and

16 could subject San Francisco to civil liability. See Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir.

17 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also

18 Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to

19 immigration arrests).

20

30. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

21 a federal immigration officer’s request for advance notification of the date and time an individual in

22 San Francisco’s custody is being released, unless the individual in question meets certain criteria. See

23 S.F. Admin. Code § 12I.3(c), (d).

24 2 Section 287.7 of Title 8 of the Code of Federal Regulations allows ICE to issue detainer
25 requests to local jurisdictions. Section 287.7 provides that such a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that
26 agency, for the purpose of arresting and removing the alien.” Subsection (d) provides that “[u]pon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal
27 justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the
28 Department.”

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1

31. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall

2 not arrest or detain an individual, or provide any individual’s personal information to a federal

3 immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil

4 immigration document based solely on alleged violations of the civil provisions of immigration laws.”

5 See Section 12I.3(e). “Personal information” is defined as “any confidential, identifying information

6 about an individual, including, but not limited to, home or work contact information, and family or

7 emergency contact information.” See Section 12I.2.

8

32. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to

9 federal civil immigration detainers, notification of release of individuals, transmission of personal

10 information, or civil immigration documents, based solely on alleged violations of the civil provisions

11 of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement

12 agencies may continue to collaborate with federal authorities to protect public safety.” See Section

13 12I.4.

14

33. San Francisco’s Sanctuary City laws arise from San Francisco’s commitment and

15 responsibility to ensure public safety and welfare. The Board of Supervisors, as San Francisco’s

16 legislative body, found that public safety is “founded on trust and cooperation of community residents

17 and local law enforcement.” Section 12I.1. Citing a study by the University of Illinois, which found

18 that at least 40% of Latinos surveyed were less likely to provide information to police because they

19 feared exposing themselves, family, or friends to a risk of deportation, the Legislature stated that “civil

20 immigration detainers and notifications regarding release undermine community trust of law

21 enforcement by instilling fear in immigrant communities of coming forward to report crimes and

22 cooperate with local law enforcement agencies.” Id.; see also id. (“The City has enacted numerous

23 laws and policies to strengthen communities and to build trust between communities and local law

24 enforcement. Local cooperation and assistance with civil immigration enforcement undermines

25 community policing strategies.”). Indeed, a recent study shows that crime is statistically significantly

26 lower in sanctuary counties compared to non-sanctuary counties. See Tom K. Wong, The Effects of

27 Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017),

28

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1 https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-

2 ofsanctuary-policies-on-crime-and-the-economy/.

3

34. The legislative findings set forth in Chapter 12I evidence the legitimate local purpose of

4 San Francisco’s Sanctuary City laws. For example, the Legislature declared:

5

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

6

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

7

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

8

cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure

9

community security, and due process for all. (See Section 12I.2.)

10

35. The Board of Supervisors also had a public health purpose for its decision to restrict

11 disclosure of confidential information: “To carry out public health programs, the City must be able to

12 reliably collect confidential information from all residents . . . . Information gathering and cooperation

13 may be jeopardized if release of personal information results in a person being taken into immigration

14 custody.” Section 12I.1.

15

36. Finally, the Board of Supervisors determined that enforcing immigration detainer

16 requests would require San Francisco to redirect scarce local law enforcement personnel and

17 resources—noting that the costs of “responding to a civil immigration detainer can include, but [are]

18 not limited to, extended detention time, the administrative costs of tracking and responding to

19 detainers, and the legal liability for erroneously holding an individual who is not subject to a civil

20 immigration detainer.” Id. In short, the Board of Supervisors concluded that “[c]ompliance with civil

21 immigration detainers and involvement in civil immigration enforcement diverts limited local

22 resources from programs that are beneficial to the City.” Id.

23

37. San Francisco departments have adopted and implemented policies consistent with

24 Chapters 12H and 12I.

25

38. California law incorporates local Sanctuary City laws such as Chapters 12H and 12I.

26 The TRUST Act states that local law enforcement officials may comply with ICE detainer requests

27 only if (1) the continued detention would not violate any federal, state, or local law, or any local

28 policy, and (2) the defendant’s criminal history meets specified conditions. Cal. Gov’t Code §§ 7282,

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1 7282.5. Thus, because in San Francisco ICE detentions are prohibited under local law, they are also

2 prohibited under state law.

3 II. 4 5

SECTION 1373
A. San Francisco Complies With Section 1373 By Not Prohibiting Its Employees From Sharing “Citizenship Or Immigration Status” Information With The Federal Government.

6

39. Section 1373 provides that a “local government entity or official may not prohibit, or in

7 any way restrict, any government entity or official from sending to, or receiving from, [federal

8 immigration officials] information regarding the citizenship or immigration status . . . of any

9 individual.” 8 U.S.C. § 1373(a). This restriction exclusively regulates government entities.

10

40. Section 1373 requires San Francisco to allow its employees to use city resources,

11 including San Francisco tax dollars, to respond to requests for information about citizenship and

12 immigration status.

13

41. San Francisco complies with Section 1373.

14

42. Nothing in San Francisco Administrative Code Chapters 12H or 12I limits

15 communications regarding citizenship or immigration status in any way.

16

43. And, indeed, under ICE’s recently restored Secure Communities program (also known

17 as “S-Comm”), whenever an individual is taken into custody, the person is digitally fingerprinted and

18 those fingerprints are sent to the California Department of Justice and ultimately the FBI. The FBI

19 forwards the fingerprints to DHS, which allows ICE to determine the immigration status of everyone

20 in San Francisco custody.

21

44. Under Chapter 12I and the TRUST Act, San Francisco does not enforce detainer

22 requests (see ¶26, supra), and does not respond to notification requests from the Federal government

23 unless certain conditions are met (see ¶30, supra). But compliance with such requests is not required

24 by Section 1373, which speaks only to communications regarding citizenship and immigration status.

25

45. San Francisco has affirmatively instructed personnel regarding the substance of Section

26 1373 in a recent memorandum to all San Francisco employees from the San Francisco Human

27 Resources Director.

28 //

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1

46. The San Francisco Board of Supervisors is currently considering a proposed ordinance

2 that would prohibit San Francisco officers and employees from using San Francisco resources to assist

3 with the creation or enforcement of any registry of individuals on the basis of religious affiliation,

4 national origin, or ethnicity. See San Francisco Board of Supervisors, Board File No. 170092, S.F.

5 Admin. Code – Non-Cooperation with Identity-Based Registry, introduced January 24, 2017, last

6 amended February 22, 2017. The proposed ordinance specifically exempts from its scope

7 communications about citizenship or immigration status authorized by Section 1373, and allows those

8 communication until a court of competent jurisdiction declares Section 1373 unconstitutional.

9 Findings for the proposed ordinance explain that it is San Francisco’s position that Section 1373 is

10 unconstitutional, but that San Francisco will continue to comply with Section 1373 until it obtains

11 Court relief.

12

B. The United States Improperly Interprets Section 1373 To Require Compliance

With Detainer Requests. 13

14

47. On May 31, 2016, in response to a request from the Office of the Attorney General, the

15 Office of the Inspector General (“OIG”) of the Department of Justice issued a memorandum (“OIG

16 Memo”) regarding potential violations of Section 1373 by recipients of funding from the Edward

17 Byrne Memorial Justice Assistance Grant Program (“JAG”). Memorandum from Michael E.

18 Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs,

19 Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant

20 Recipients (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.3

21

48. In analyzing the local laws and policies of ten selected state and local jurisdictions, OIG

22 demonstrated how the Federal government interprets Section 1373.

23

49. Although Section 1373 does not expressly address immigration detainers, OIG

24 expressed concern that local laws concerning the handling of detainer requests “may have a broader

25 practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore,

26 3 The authorizing legislation for the JAG program requires that all grant applicants certify
27 compliance with the provisions of the authorizing legislation and all other “applicable federal laws.” 42 U.S.C. § 3750 et seq. The U.S. Department of Justice, Office of Justice Programs has recently
28 announced that Section 1373 is an “applicable” law under the JAG authorizing legislation.

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1 be inconsistent with at least the intent of Section 1373.” OIG Memo at 7. It went on to state that local

2 laws and policies that “purport to be focused on civil immigration detainer requests [and say nothing

3 about sharing immigration status with ICE] . . . may nevertheless be affecting ICE’s interactions with

4 the local officials regarding ICE immigration status requests.” Id.

5

50. OIG also stated that such immigration detainer request policies “may be causing local

6 officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE

7 in all respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id.

8 at 8.

9

51. In the OIG Memo, the Federal government also endorses the view that local

10 jurisdictions hinder the enforcement of Federal immigration law if they do not honor detainer requests

11 or if they place any other limitations on cooperation with ICE. See, e.g., id. at 4 (stating that even

12 though Section 1373 does not specifically address restrictions by state or local entities on cooperation

13 with ICE regarding detainers, “[a] primary and frequently cited indicator of limitations placed on

14 cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction

15 handles immigration detainer requests issued by ICE”).

16

52. Yet, San Francisco cannot lawfully comply with ICE detainer requests. Complying with

17 civil immigration detainer requests, in the absence of a determination of probable cause, would violate

18 the Fourth Amendment to the United States Constitution and could subject San Francisco to civil

19 liability for this harm. See Arizona v. United States, 132 S. Ct. 2492, 2509 (2012) (noting that

20 “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns”);

21 Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty.,

22 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th

23 Cir. 2012) (applying the Fourth Amendment to immigration arrests).

24

53. In the OIG Memo, OIG recommended that the U.S. Department of Justice, Office of

25 Justice Programs (“OJP”) provide JAG recipients clear guidance on their obligation to comply with

26 Section 1373 and require them to certify that they comply with that section. See OIG Memo at 9.

27

54. In response to these recommendations, in July and October 2016 OJP issued guidance

28 regarding compliance with Section 1373. See Office of Justice Programs, Guidance Regarding

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1 Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST. (July 7, 2016) (“OJP July Guidance”); Office of

2 Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST.

3 (October 6, 2016) (“OJP October Guidance”).

4

55. In the OJP July Guidance, OJP reads Section 1373 to impose an affirmative obligation

5 on state and local governments. The Guidance states that to comply with Section 1373, “[y]our

6 personnel must be informed that notwithstanding any state or local policies to the contrary, federal law

7 does not allow any government entity or official to prohibit the sending or receiving of information

8 about an individual’s citizenship or immigration status with any federal, state or local government

9 entity and officials.” OJP July Guidance at 1 (emphasis added). Accordingly, OJP reads into the law

10 an affirmative obligation to instruct personnel regarding the substance of Section 1373.

11

56. In the October 2016 Guidance, OIG stated that all JAG applicants must comply with—

12 and certify their compliance with—Section 1373. OJP October Guidance at 1.

13

57. As a subgrantee of a JAG grant, San Francisco is required to certify its compliance with

14 Section 1373.

15 III. THE EXECUTIVE ORDER

16

A. The Executive Order Cuts Off Federal Funding From Sanctuary Jurisdictions

And Directs Enforcement Action Against Them. 17

18

58. On January 25, 2017, President Donald J. Trump issued the Executive Order attached

19 as Exhibit 3.

20

59. The Executive Order declares, “Sanctuary jurisdictions across the United States

21 willfully violate Federal law in an attempt to shield aliens from removal from the United States. These

22 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

23 Republic.” Executive Order at 8799.

24

60. To address the purported harm caused by Sanctuary Cities, the Executive Order

25 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not receive

26 Federal funds, except as mandated by law.” Id.

27 //

28 //

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1

61. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

2 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a

3 State, shall comply with 8 U.S.C. 1373.” Id. at 8801.

4

62. Section 9(a) of the Executive Order establishes a funding restriction (the “Funding

5 Restriction”):

6

In furtherance of this policy, the Attorney General and the Secretary, in their discretion

7

and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

8

Federal grants, except as deemed necessary for law enforcement purposes by the

Attorney General or the Secretary. The Secretary has the authority to designate, in his

9

discretion and to the extent consistent with law, a jurisdiction as a sanctuary

jurisdiction. 10

11 Id.

12

63. Section 9(a) of the Executive Order also mandates enforcement action (the

13 “Enforcement Directive”):

14 15 16 Id.

The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

17

64. Section 9(a) of the Executive Order defines “sanctuary jurisdictions” as those

18 jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” But Section 9(b) indicates that

19 Defendants in fact define that category quite broadly as including any jurisdiction that declines to

20 comply with ICE detainer requests:

21 To better inform the public regarding the public safety threats associated with

22

sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer

Outcome Report or its equivalent and, on a weekly basis, make public a

23

comprehensive list of criminal actions committed by aliens and any jurisdiction

that ignored or otherwise failed to honor any detainers with respect to such

24

aliens.

25

65. The Executive Order thus attempts to mandate compliance with detainer requests as

26 part of Section 1373 compliance, with the consequence that a jurisdiction such as San Francisco that

27 does not comply with ICE detainer requests will lose federal funds under the Executive Order.

28 //

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1

66. A jurisdiction that fails to comply with detainer requests also faces enforcement action

2 under Section 9(a)’s Enforcement Provision. As discussed further below, Defendants view the local

3 decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or

4 hinders the enforcement of Federal law.”

5

B. Defendants Have Labeled San Francisco A Sanctuary Jurisdiction Within The

Meaning Of The Executive Order.

6

7

67. As discussed above, San Francisco does comply with Section 1373, properly construed.

8 Nonetheless, Defendants deem San Francisco a sanctuary jurisdiction pursuant to their overly broad

9 definition of that term.

10

68. If there were any question about whether Defendants deem San Francisco as a

11 “sanctuary jurisdiction,” that question is answered by Defendants’ own statements, which clearly

12 characterize San Francisco as a Sanctuary City.

13

69. For example, in a written campaign speech, then-candidate Donald J. Trump gave in

14 Phoenix, Arizona on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City. See

15 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

16 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration (“Another

17 victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant

18 deported five previous times.”).

19

70. Further, Defendants have repeatedly identified Sanctuary Cities, and specifically

20 San Francisco, as those that decline detainer requests and otherwise do not affirmatively support

21 federal immigration enforcement.

22

• In statements to the Daily Caller on July 7, 2015, Congressman Darrell Issa and

23

now-Attorney General Sessions criticized San Francisco and other sanctuary

24

jurisdictions for failing to honor detainers. Sessions stated, “This disregarding of

25

detainers and releasing persons that ICE has put a hold on—it goes against all

26

traditions of law enforcement. Laws and courtesies within departments— if you

27

have somebody charged with a crime in one city, you hold them until you complete

28

your business with them . . . . So what was happening was, ICE authorities were

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1

filing detainers and sanctuary cities were saying, ‘We’re not gonna honor them.

2

They finished paying for the crime they committed in our city— we’ve released

3

them.’” Kerry Picket, Sen. Sessions: City Officials Harboring Illegal Immigrant

4

Felons Could Be Charged with Crime, Daily Caller (July 7, 2015, 10:07 PM),

5

http://dailycaller.com/2015/07/07/sen-sessions-city-officials-harboring-illegal-

6

immigrant-felons-could-be-charged-with-crime/#ixzz4XE9I12Ux.

7

• On July 8, 2015, Sessions gave a speech to Congress describing San Francisco as “a

8

jurisdiction that is known to release illegal immigrants back into the public,” and

9

one which refused to “honor” a detainer sought by federal authorities. News

10

Release, Office of Senator Jeff Sessions, Senator Sessions Calls on Congress To

11

Take Up Immigration Reform for Americans (July 9, 2015),

12

http://www.sessions.senate.gov/public/index.cfm/news-releases?ID=B7A98B63-

13

8ECA-4A4E-B5C8-4A665F2343DE.

14

• In an interview with Breitbart News in May 2016, then-candidate Donald J. Trump

15

stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and

16

people that should not have a safe-haven in many cases. It’s just unacceptable.

17

We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive —

18

Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’

19

Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016),

20

http://www.breitbart.com/2016-presidential-race/2016/05/16/exclusive-donald-j-

21

trump-to-san-francisco-sanctuary-cities-unacceptable-a-disaster-creating-safe-

22

haven-for-criminals/. This Breitbart news report further stated that “Trump’s

23

comments . . . come in response to efforts by far left progressive organizations in

24

San Francisco to expand that city’s sanctuary city laws.” Id.

25

• Another Breitbart News article published on November 21, 2016 regarding

26

Sanctuary Cities quoted Texas Republican Congressman John Culberson as stating,

27

“The law requires cooperation with immigration officials 100 percent of the time.”

28

Bob Price, Sanctuary Cities Risk Losing DOJ Funds in 2017, Texas Congressman

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1

Says, Breitbart News (Nov. 21, 2016),

2

http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds-

3

2017-texas-congressman-says/.

4

71. Defendants have also repeatedly stated their intent to strip federal funding from

5 Sanctuary Cities.

6

x In a statement by White House Press Secretary Sean Spicer on January 25, 2017

7

announcing the issuance of the Executive Order, Spicer stated, “We are going to

8

strip federal grant money from the sanctuary states and cities that harbor illegal

9

immigrants. The American people are no longer going to have to be forced to

10

subsidize this disregard for our laws.” White House, 1/25/17: White House Press

11

Briefing, YouTube (Jan. 25, 2017),

12

https://www.youtube.com/watch?v=OaPriMVvtZA.

13

x A press release from the Office of the Press Secretary for the White House issued

14

on January 28, 2017 detailing President Trump’s First Week of Action, reads in

15

relevant part: “President Trump signed an executive order to ensure that

16

immigration laws are enforced throughout the United States, including halting

17

federal funding for sanctuary cities.” Press Release, The White House, Office of the

18

Press Secretary, President Trump’s First Week of Action (Jan. 28, 2017),

19

https://www.whitehouse.gov/the-press-office/2017/01/28/president-trumps-first-

20

week-action.

21

x Press Secretary Sean Spicer reiterated this goal on February 1, 2017, stating “I think

22

the President’s goal in ending sanctuary cities is pretty clear. . . . [T]he President

23

has been very clear through his executive order that federal funds, paid for by

24

hardworking taxpayers, should not be used to help fund sanctuary cities.” Press

25

Release, The White House, Office of the Press Secretary, Press Briefing by Press

26

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017),

27

https://www.whitehouse.gov/the-pressoffice/2017/02/01/press-briefing-press-

28

secretary-sean-spicer-212017-6.

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1

72. Indeed, Defendants have explicitly stated their intent to use federal funding cuts as a

2 “weapon” against Sanctuary Cities, in an attempt to coerce jurisdictions to bend to their will.

3

x In an interview with Bill O’Reilly on February 5, 2017, President Trump called the

4

efforts of California lawmakers to propose legislation that could stop state police and

5

sheriffs from enforcing federal immigration laws “ridiculous.” Alexander Mallin and

6

Lissette Rodriguez, Trump Threatens Defunding Sanctuary States as 'Weapon', ABC

7

News (Feb. 5, 2017, 6:01 PM), http://abcnews.go.com/Politics/trump-threatens-

8

defunding-sanctuary-states-weapon/story?id=45286642. He stated: “I don't want to

9

defund anybody. I want to give them the money they need to properly operate as a

10

city or a state.” But he said, “If they’re going to have sanctuary cities, we may have

11

to do that. Certainly that would be a weapon.” Id. “Sanctuary cities, as you know I’m

12

very much opposed to sanctuary cities -- they breed crime, there’s lots of problems.”

13

Id. “We give tremendous amounts of money to California,” Trump said. “Obviously

14

the voters agree or otherwise they wouldn't have voted for me.” Id.

15

x When asked at a press briefing whether Cincinnati would face sanctions for voting to

16

become a Sanctuary City, Sean Spicer, the President’s press secretary stated:

17

As I’ve noted before, at the end of the day, this order is about two

things: one, keeping our cities safe, and two, respecting the hard-

18

earned taxpayers who send their money to the federal government.

And the President is going to do everything he can within the scope

19

of the executive order to make sure that cities who don’t comply

with it -- counties and other institutions that remain sanctuary cities

20

don’t get federal government funding in compliance with the

executive order. I think more areas like Miami-Dade, down in

21

Florida, understand the importance of this order, and we hope cities

like Cincinnati and other communities around the country follow

22

their lead and comply with that.

23

Press Release, The White House, Office of the Press Secretary, Press Briefing by

24

Press Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017),

25

https://www.whitehouse.gov/the-press-office/2017/02/08/press-briefing-press-

26

secretary-sean-spicer-282017-10.

27 //

28 //

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1

73. The White House’s public website states that President Trump “is dedicated to

2 enforcing our border laws, ending sanctuary cities, and stemming the tide of lawlessness associated

3 with illegal immigration.” Standing Up For Our Law Enforcement Community, The White House,

4 https://www.whitehouse.gov/law-enforcement-community (last visited on Feb. 27, 2017) (emphasis

5 added).

6

74. Defendants’ statements demonstrate their belief that Sanctuary Cities, like

7 San Francisco, violate Section 1373 and their intent that Sanctuary Cities will lose federal funding—

8 apparently all or almost all federal funding—and be subject to enforcement action under the Executive

9 Order.

10

75. There is a “credible threat” that Defendants will seek to enforce the unconstitutional

11 Executive Order against San Francisco.

12 IV. SECTION 1373 AND THE EXECUTIVE ORDER HARM SAN FRANCISCO

13

A. Constitutional Injury

14

1. Section 1373(a) Violates The Tenth Amendment.

15

76. Congress may not command States to provide the Federal government with information

16 “that only state officials have access to.” Printz v. United States, 521 U.S. 898, 932 n.17 (1997). The

17 Federal government must not regulate its fellow governments in their capacities as governments.

18

77. Yet, that is exactly what Section 1373(a) does. Section 1373(a) unconstitutionally

19 regulates “States in their sovereign capacity.” Reno v. Condon, 528 U.S. 141, 151 (2000). It

20 necessarily regulates governments in their capacities as governments. It does not “subject state

21 governments to generally applicable laws.” New York v. U.S., 505 U.S. 144, 160 (1992). On the

22 contrary, in every possible application, it targets “government entit[ies] or official[s]” for special

23 treatment. 8 U.S.C. § 1373(a).

24

78. Also, Section 1373(a) targets government entities’ and officials’ authority to control

25 their subordinates—an authority at the heart of a government’s existence as a government. “[A] State

26 can act only through its officers and agents.” Nevada v. Hicks, 533 U.S. 353, 365 (2001). “Through the

27 structure of its government, and the character of those who exercise government authority, a State

28 defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

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79. By preventing state and local governments from directing employees how to handle

2 information about citizenship and immigration status, Section 1373 makes it impossible for local

3 jurisdictions to freely choose and to clearly establish how they will handle this information. Under

4 Section 1373, San Francisco cannot command its government officials and employees never to share

5 citizenship or immigration information. Yet Congress has no power “to require the States to govern

6 according to Congress’ instructions.” New York, 505 U.S. at 162.

7

80. Section 1373 mandates uncertainty where Sanctuary City laws seek to provide

8 certainty. Because of Section 1373, San Francisco cannot tell the public that it will never share

9 information about citizenship or immigration status. Any attempt to impose a uniform rule is fettered

10 by the individual discretion of over 30,000 employees and officials. This is not the way San Francisco

11 chooses to govern. It is chaos imposed by the Federal government.

12

81. Through its Sanctuary City laws, policies, and practices, San Francisco has sought to

13 distinguish local law enforcement officers from federal immigration enforcement officers in order to

14 encourage local government accountability and public confidence in local law enforcement. As

15 applied against these local governance efforts, Section 1373 would violate a core principle underlying

16 the Tenth Amendment, namely, the accountability of state and Federal government officials to their

17 electorates. See Printz, 521 U.S. at 929–30.

18

82. Defendants’ broader interpretation of Section 1373—to require compliance with

19 “voluntary” ICE detainer requests—implicates additional constitutional injury. This interpretation

20 would affirmatively require San Francisco to use local resources to detain and hold people without

21 probable cause, in violation of both the Fourth and Tenth Amendments.

22

2. The Executive Order Violates The Tenth Amendment, Separation Of Powers, And The Spending Clause.

23

a. The Executive Order Funding Restriction Is Unconstitutional.

24

i. Tenth Amendment

25

83. To the extent the Executive Order’s Funding Restriction incorporates Section 1373(a),

26 it is invalid for all of the reasons described above. The Funding Restriction is also unconstitutional for

27 the additional reasons described below.

28 //

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ii. Separation of Powers

2

84. As a threshold matter, the Funding Restriction purports to exercise Spending Power that

3 Article I, Section 8 of the Constitution grants exclusively to Congress.

4

85. The Executive Order violates the separation of powers by creating a penalty for Section

5 1373 that Congress did not authorize, without regard to statutory rules on grant programs put in place

6 by Congress. The Executive Order effectively legislates a sanction for violations of Section 1373 by

7 using the statute as a basis to broadly deny federal grants to municipalities that have made a policy

8 decision to focus law enforcement resources on local problems and limit their entanglement with

9 federal immigration enforcement. The President’s unilateral imposition of this new sanction and

10 condition on spending is not supported by any act of Congress, including the Immigration and

11 Nationality Act, 8 U.S.C. § 1101 et seq., or by the Constitution.

12

86. The Funding Restriction additionally violates the separation of powers by imposing a

13 new restriction on jurisdictions’ eligibility to receive federal funds: “jurisdictions that willfully refuse

14 to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,

15 except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”

16 Executive Order at 8801.

17

87. The President may not unilaterally impose new restrictions on jurisdictions’ eligibility

18 for federal funding. Any restriction on eligibility for federal funds must be imposed—clearly,

19 unambiguously, and in advance—by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

20 1, 17 (1981). When Congress has not imposed such a restriction by statute, the President may not do

21 so by fiat. The President does not have “unilateral power to change the text of duly enacted statutes.”

22 Clinton v. City of New York, 524 U.S. 417, 447 (1998).

23

88. Congress has spoken to reject the imposition of such funding restrictions, including

24 when it declined to enact Senate Bill 1842, “Protecting American Lives Act,” introduced in July 2015

25 by then-Senator Attorney General Jeff Sessions. The bill would in part have expanded Section 1373 to

26 deprive jurisdictions having “in effect a statute, policy, or practice that prohibits law enforcement

27 officers of the State, or of a political subdivision of the State, from assisting or cooperating with

28 Federal immigration law enforcement in the course of carrying out the officers’ routine law

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1 enforcement duties” of “any . . . law enforcement or Department of Homeland Security grant.” S.

2 1842, 114th Cong. § 3 (2015). Senate Bill 1842 did not make it out of committee, nor did the identical

3 House of Representatives Bill 3437. Where the President “takes measures incompatible with

4 the expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube

5 Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

6

89. By imposing conditions or limitations on federal spending without express statutory

7 authority, the Executive Order also unlawfully exceeds the President’s powers under other provisions

8 of the Constitution that establish the separation of powers among the branches of our government,

9 including: (i) the President’s obligation to “take Care that the Laws be faithfully executed,” U.S.

10 Const. art. II, § 3, cl. 5 (Take Care Clause), and (ii) the limitation that Congressional enactments must

11 “be presented to the President of the United States,” who then may sign that enactment or veto it, but

12 has no power to merely revise it, either upon presentment or after enactment, U.S. Const. art. I, § 7,

13 cls. 2-3 (Presentment Clause).

14

iii.

Spending Clause

15

90. Further, the Funding Restriction purports to exercise Spending Power in ways that even

16 Congress could not.

17

91. The Funding Restriction violates the Spending Clause by imposing new funding

18 conditions on existing appropriations of federal funds. “[I]f Congress intends to impose a condition on

19 the grant of federal moneys, it must do so unambiguously,” in advance. Pennhurst, 451 U.S. at 17.

20 “The legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the

21 State voluntarily and knowingly accepts” Congress’s conditions. Id. “There can, of course, be no

22 knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of

23 it.” Id.

24

92. The Funding Restriction also violates the Spending Clause by imposing funding

25 conditions that are not germane to the purpose of the funds. “[T]he imposition of conditions under the

26 spending power” must be “germane” or “related” to the purpose of federal funding. South Dakota v.

27 Dole, 483 U.S. 203, 208-09 & n.3 (1987); see also Massachusetts v. United States, 435 U.S. 444, 461

28 (1978). Here, the Funding Restriction conditions eligibility for federal funding on compliance with

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1 Section 1373, without regard for whether Section 1373 is germane to any federal funds at issue. In

2 fact, the Funding Restriction specifically exempts those federal funds—funds “deemed necessary for

3 law enforcement purposes”—that might arguably be germane to Section 1373.

4

93. The Funding Restriction also imposes conditions so severe that they “cross[] the line

5 distinguishing encouragement from coercion.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

6 2603 (2012) (opinion of Roberts, C.J.); New York v. United States, 505 U.S. 144, 175 (1992). The

7 Funding Restriction “is much more than ‘relatively mild encouragement’—it is a gun to the head.”

8 Sebelius, 132 S. Ct. at 2604 (opinion of Roberts, C.J.). The Funding Restriction threatens a substantial

9 percentage of San Francisco’s overall budget—approximately 13% of its total annual operating

10 budget, even without considering federal multi-year grants. Threatened funds include the entire

11 funding stream for programs, such as Medicaid, that are critical to the lives of San Francisco’s

12 residents. Threats of this magnitude, and to such critical programs, constitute “economic dragooning

13 that leaves the States with no real option but to acquiesce” to federal dictates. Id. at 2605.

14

94. Finally, because Defendants interpret Section 1373 to require jurisdictions to comply

15 with immigration detainers, the Funding Restriction imposes a new funding condition that requires

16 jurisdictions to act unconstitutionally. Under the Fourth Amendment, detention of an individual must

17 be supported by a determination of probable cause. See Morales v. Chadbourne, 793 F.3d 208, 215–17

18 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014).

19 Requiring state and local governments (including San Francisco) to establish blanket policies of

20 compliance with immigration detainers could thus cause them to violate the Fourth Amendment. But

21 Congress’s Spending Power “may not be used to induce the States to engage in activities that would

22 themselves be unconstitutional.” Dole, 483 U.S. at 210.

23

95. This concern is heightened by the fact that state and local governments, including

24 San Francisco, generally lack authority to make warrantless arrests under the Federal government’s

25 civil immigration laws. See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). It is further

26 heightened by the prospect that “ICE’s issuance of detainers that seek to detain individuals without a

27 warrant goes beyond its statutory authority to make warrantless arrests.” Moreno v. Napolitano, No.

28 11-C-5452, 2016 WL 5720465, at *8 (N.D. Ill. Sept. 30, 2016).

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1

96. For all these reasons, the Funding Restriction violates the Constitution’s separation of

2 powers (and, in particular, the Constitution’s grant of legislative power to Congress in Article I,

3 Section 1); the Spending Clause of Article I, Section 8; and the Tenth Amendment.

4

b. The Executive Order Enforcement Directive Is Unconstitutional.

5

97. The Executive Order’s Enforcement Directive violates the Tenth Amendment. The

6 Enforcement Directive commandeers state and local governments by, inter alia, compelling them to

7 enforce federal law under threat of legal action.

8

98. The Enforcement Directive mandates that “[t]he Attorney General shall take

9 appropriate enforcement action against any entity that violates 8 U.S.C. 1373.” Executive Order at

10 8801. As discussed above, Defendants interpret Section 1373 to require jurisdictions to comply with

11 immigration detainers.

12

99. The Enforcement Directive also mandates “enforcement action against any entity

13 that . . . has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

14 law.” Executive Order at 8801. As discussed above, Defendants interpret a state or local government’s

15 decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or

16 hinders the enforcement of Federal law.”

17

100. The Enforcement Directive thus mandates that the Attorney General take enforcement

18 action against state and local governments that do not detain individuals at the behest of the Federal

19 government.

20

101. Compelling state and local governments to detain individuals at the behest of the

21 Federal government violates the Tenth Amendment. “[T]he Federal Government may not compel the

22 States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United

23 States, 521 U.S. 898, 925 (1997). To “command state or local officials to assist in the implementation

24 of federal law” is to engage in impermissible commandeering. Id. at 927.

25

B. Community Injury

26

102. The Executive Order fosters an atmosphere of fear and distrust between undocumented

27 immigrants and local government officials in San Francisco. Its sweeping terms, combined with recent

28 ICE activity in San Francisco, and compounded by the Trump administration’s statements about

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1 immigration enforcement, have generated a maelstrom of fear and confusion that San Francisco

2 agencies have had to move quickly to contain.

3

103. The Executive Order is designed to—and does—create public confusion about whether

4 San Francisco is and will remain a Sanctuary City, and what that means.

5

104. San Francisco has been forced to spend resources to counteract the effect of the

6 Executive Order. Since the Executive Order issued, San Francisco officials and employees have

7 responded to questions from San Francisco departments, non-profit partners, and members of the

8 public about topics such as whether the Executive Order modifies ICE’s authority to enter public

9 facilities, jails, and residences; whether individuals’ personal identifying information on applications

10 for benefit programs remains protected; and whether the Executive Order changes the way

11 San Francisco law enforcement officers interact with ICE. San Francisco departments have held

12 numerous meetings discussing the impact of the Executive Order and have developed new educational

13 materials about San Francisco Chapters 12H and 12I.

14

105. Given the Executive Order’s broad language, even San Francisco’s extensive and

15 ongoing efforts to offer clear answers leave the public far from reassured.

16

106. By heightening undocumented immigrants’ concerns that any interaction with

17 San Francisco officials will lead to their information being turned over to ICE, the Executive Order

18 discourages undocumented immigrants from reporting crimes, seeking public health services, and

19 otherwise engaging with San Francisco programs and services. This threat harms public safety, public

20 health, and San Francisco’s ability to act in what San Francisco has determined to be the best interest

21 of its residents, consistent with federal and state law.

22

107. The Executive Order undermines San Francisco’s ability to provide critical services not

23 just to undocumented immigrants, but to all residents. When witnesses and crime victims will not talk

24 to the police, law enforcement suffers and the entire community is less safe. When children are not

25 vaccinated or the sick are not treated for communicable diseases, illness spreads throughout the

26 community.

27 //

28 //

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1

108. As a result, the Executive Order causes the very harms San Francisco’s Sanctuary City

2 laws were designed to prevent. The Executive Order destroys rather than “foster[s] respect and trust

3 between law enforcement and residents,” wastes rather than “protect[s] limited local resources,” and

4 discourages rather than “encourage[s] cooperation between residents and City officials, including

5 especially law enforcement and public health officers and employees.” S.F. Admin. Code § 12I.1.

6

C. Budgetary Injury

7

1. San Francisco Relies On Federal Funding For Essential Public Services.

8

109. San Francisco is home to about 865,000 residents and has a total daytime population of

9 about 1,250,000. People who live in, work in or visit San Francisco rely on—in addition to other

10 public services—law enforcement provided by the San Francisco Police Department; public

11 infrastructure projects such as roads, bridges and public transit; and the availability of high quality

12 emergency care from San Francisco General Hospital. Residents also rely on public health programs

13 such as Medi-Cal and public assistance programs like CalWORKS. While San Francisco has

14 benefitted from a recent economic boom, over 12% of San Franciscans live in poverty, and depend on

15 public assistance to make ends meet and put food on the table.

16

110. San Francisco contributes disproportionately to national economic growth and job

17 creation. Between 2010 and 2015, San Francisco ranked second among all U.S. counties in percentage

18 change in employment, generating over 125,000 new jobs, a growth rate of 28%. A significant portion

19 of this growth has been in the technology sector, a source of high wage jobs with important multiplier

20 effects and potential for future growth.

21

111. The State of California, including San Francisco, pays more to the Federal government

22 in taxes than it receives in federal spending. In 2014, California residents and businesses paid a total of

23 $369.2 billion in federal business and personal income, estate, gift, and excise taxes to the Internal

24 Revenue Services and were the beneficiaries of $355.8 billion in federal expenditures. California

25 ranked 38th among states in the ratio of federal spending to collections.

26

112. In turn, San Francisco relies on federal funding to provide essential services and build

27 and maintain public infrastructure projects.

28 //

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1

113. San Francisco budgets by a fiscal year that runs from July 1 to June 30. The current

2 fiscal year began July 1, 2016, and will end June 30, 2017 (“FY16-17”). The next fiscal year will run

3 from July 1, 2017 to June 30, 2018 (“FY17-18”).

4

114. San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in

5 federal funds. This is approximately 13% of the total annual operating budget.

6

115. On top of the federal funds allocated in the annual operating budget, San Francisco

7 expects to receive an additional $800 million in federal multi-year grants, largely for public

8 infrastructure projects.

9

116. The programs, projects, and services described below are just a few examples of how

10 San Francisco uses federal funds.

11

a. Human Services Agency

12

117. San Francisco’s Human Services Agency (“HSA”) provides critical services to

13 San Francisco’s most vulnerable residents. It works with over 200,000 residents each year to provide

14 needed nutrition assistance, income support, and child welfare services, among other support services.

15 Approximately one in four San Franciscans is a client of HSA. HSA also manages numerous programs

16 that serve young children and their families, older adults, and individuals with disabilities. HSA relies

17 on federal funding to provide these services.

18

118. For example, the In-Home Supportive Services (“IHSS”) program assists about 23,000

19 low-income elderly, disabled, or blind San Franciscans to live safely in their own homes and

20 communities. For some recipients, the IHSS program reduces acute health care and institutional long-

21 term care costs that would otherwise be incurred by the state and Federal governments through Medi-

22 Cal. About 19,000 individuals work as independent providers for IHSS recipients. For FY16-17, the

23 County’s IHSS program is budgeted to receive approximately $64 million in federal funds, accounting

24 for nearly 40% of the program’s budget. Virtually all of these funds are provided as reimbursements.

25 This amount does not include the approximately $200 million of federal funds that the State of

26 California pays directly to independent IHSS providers.

27

119. HSA also provides financial assistance and services to San Francisco’s neediest

28 residents, including children and families living in poverty. For example, through California Work

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1 Opportunity and Responsibility to Kids (CalWORKS), HSA provides financial assistance, family

2 stabilization, case management, vocational counseling, job readiness assistance, behavioral health

3 treatment, transportation, and other services designed to help parents of low-income families meet

4 welfare-to-work requirements, secure and retain employment, and become self-sufficient.

5 San Francisco’s CalWORKS program is budgeted to receive approximately $58 million in federal

6 funding in FY16-17, accounting for over 50% of the County’s CalWORKS and Welfare-to-Work

7 FY16-17 budget. Virtually all of these funds are provided as reimbursements.

8

120. HSA offers numerous other social services, including child welfare programs and

9 services, early childhood care and education services, adult protective services and a County Veteran’s

10 Service Office that helps veterans and their families receive benefits to which they are entitled.

11

121. In FY16-17, HSA expects to receive a total of approximately $286 million in federal

12 funding. This represents approximately 33% of its FY16-17 budget.

13

122. HSA directly employs nearly 2,000 employees. It also funds hundreds of additional

14 jobs through contracts to service providers. Loss of federal funds would threaten many of these jobs,

15 as well as the underlying services, that depend on HSA funds.

16

b. Department of Public Health

17

123. The Zuckerberg San Francisco General Hospital (“ZSFGH”) is a licensed general acute

18 care hospital owned and operated by San Francisco. ZSFGH has 284 beds and provides a full

19 complement of inpatient, outpatient, emergency, skilled nursing, diagnostic, mental health, and

20 rehabilitation services for adults and children. ZSFGH is the largest safety net provider in

21 San Francisco and is the designated trauma center for the 1.5 million residents of San Francisco and

22 northern San Mateo County. In FY16-17, ZSFGH expects to receive approximately $450 million in

23 federal funding for Medi-Cal and Medicare patient services. This accounts for over half of the ZSFGH

24 FY16-17 budget of nearly $840 million. Virtually all of these funds are provided as reimbursements.

25

124. Laguna Honda Hospital provides a full range of skilled nursing services to adult

26 residents of San Francisco who are disabled or chronically ill, including specialized care for those with

27 wounds, head trauma, stroke, spinal cord and orthopedic injuries, HIV/AIDS, and dementia. In FY16-

28 17, Laguna Honda Hospital expects to receive approximately $160 million in federal funding for

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1 Medi-Cal and Medicare patient services, accounting for nearly 60% of its budget. Virtually all of these

2 funds are provided as reimbursements.

3

125. The San Francisco Department of Public Health (“DPH”) also provides direct services

4 through its primary care clinics, HIV/AIDS health services, mental health and substance abuse

5 treatment, housing and homelessness assistance, maternal and child healthcare, and jail health

6 services.

7

126. Additionally, the DPH Population Health Division addresses public health concerns,

8 including consumer safety, health promotion, and disease prevention. DPH also monitors threats to

9 public health.

10

127. Overall, in FY16-17, DPH expects to receive approximately $800 million in federal

11 funding. This represents almost 40% of the Department’s FY16-17 budget.

12

128. DPH has approximately 6,800 full-time equivalent employees, and it funds hundreds of

13 additional jobs through contracts to service providers. Loss of federal funds would threaten many of

14 the thousands of jobs that depend on DPH funds.

15

c. Department of Emergency Management

16

129. The Department of Emergency Management (“DEM”) leads San Francisco in planning,

17 preparedness, communication, response, and recovery for daily emergencies, large scale citywide

18 events, and major disasters. DEM is the vital link in emergency communication between the public

19 and first responders.

20

130. One of the programs DEM administers is the Bay Area Urban Areas Security Initiative

21 (“UASI”), which sustains and improves regional capacity to prevent, mitigate, respond to, and recover

22 from terrorist attacks and catastrophic disasters. UASI funds training exercises and regional

23 emergency management and disaster response. This program is funded entirely by federal funds.

24

131. In FY16-17, DEM anticipates receiving about $25 million in federal funding, mostly

25 supporting the UASI program. This represents nearly 30% of the Department’s FY16-17 budget.

26 //

27 //

28 //

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1

d. San Francisco Municipal Transportation Agency’s Vehicle

2

Replacement Program

3

132. San Francisco Municipal Transportation Authority (“SFMTA”) operates over 1,000

4 vehicles across 75 transit lines, carrying on average 700,000 passengers each workday. Replacing and

5 rehabilitating vehicles as they near the end of their useful life helps avoid costly repairs and service

6 interruptions. Growing the vehicle fleet also alleviates overcrowding and enables the transit system to

7 carry more passengers.

8

133. Nearly 80% of SFMTA’s vehicle replacement and rehabilitation funding comes from

9 the Federal government. Based on the latest Metropolitan Transportation Commission’s

10 Transportation Improvement Program, which is a comprehensive spending plan for the Bay Area

11 region, SFMTA expects to receive over $500 million for this purpose from FY 2016-17 through FY

12 2019-20. These funds are subject to “Buy American” provisions. For example, San Francisco’s most

13 recently purchased light-rail vehicles are manufactured in Sacramento, California and New Flyer

14 trolley buses are manufactured in Minnesota. The funds are expected to replace the system’s

15 approximately 1,000 aging vehicles over the four-year period.

16

D. Federal Funding Streams

17

134. San Francisco receives federal funds in the form of grants, as well as though payments

18 for entitlement programs. These entitlement programs include Medicaid and Medicare, Temporary

19 Assistance for Needy Families, Supplemental Nutrition Assistance Program, Foster Care, and various

20 child welfare programs. Undocumented immigrants are not eligible to receive benefits from most

21 entitlement programs. Approximately 80% of the federal funds budgeted for FY16-17 are for

22 entitlement programs.

23

135. San Francisco receives federal funds directly from the Federal government, as well as

24 indirectly through the State of California and other pass-through entities. For FY16-17,

25 San Francisco’s budget includes over $1.1 billion in pass-through funds, the vast majority of which is

26 passed through the State of California. President Trump has identified California as a possible

27 sanctuary jurisdiction. Because California does not prohibit voluntary communications about

28

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1 immigration status, it should be deemed to comply with Section 1373. If Defendants nonetheless cut

2 off funds to California, this could result in the loss of pass-through funds to San Francisco.

3

136. San Francisco receives most federal funds—for both grants and entitlement programs—

4 as reimbursements. San Francisco is currently providing services and benefits that the Federal

5 government has agreed to reimburse. San Francisco is also building major transit expansions and other

6 public infrastructure projects, as well as running programs across a variety of San Francisco agencies,

7 based on the Federal governments’ commitment to pay for these projects and programs. The Executive

8 Order calls into question whether the Federal government will in fact reimburse San Francisco for

9 these funds.

10

137. Congress has established numerous conditions governing eligibility for federal funds.

11 For instance, to receive Medicaid funds, a state must create a state plan that includes assurances to the

12 Federal government that the state will provide specified types of care and that the state regulates health

13 insurance providers to ensure access to medical assistance, among many other requirements. 42 U.S.C.

14 § 1396(a).

15

138. In another example, the United States Department of Housing and Urban Development

16 Community Development Block Grants fund many projects to combat unlawful evictions, maintain

17 stable housing occupancy and supply, and incentivize affordable unit construction. These grants

18 require the grantee to prepare a statement of community development objectives and projected use of

19 funds, provide a citizen participation plan, and certify other enumerated criteria. 42 U.S.C. § 5304.

20

139. No federal funds received by San Francisco have statutory conditions specifically

21 requiring compliance with Section 1373.

22

C. Coercive Effect Of The Executive Order

23

140. The Executive Order threatens not to pay San Francisco over $2 billion in federal funds

24 that is money already spent by San Francisco—money San Francisco is spending today and money

25 San Francisco has reasonably relied on receiving. As set forth in this Complaint, the Executive Order

26 is unconstitutional in numerous respects. Nonetheless, San Francisco currently faces the prospect of

27 sweeping cuts in necessary federal funding.

28 //

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141. It would be catastrophic for San Francisco to lose all federal funds. It would not be

2 possible for San Francisco to backfill the loss of $1.2 billion with local revenue sources.

3

142. San Francisco’s reserves are insufficient to cover the loss of all federal funds.

4 San Francisco currently has contingency reserves of approximately $350 million, in a Rainy Day Fund

5 and a Stabilization Fund, which were created and funded over the last decade for the purpose of

6 managing local tax revenue volatility created by economic conditions. These reserve levels, totaling

7 less than 8% of general fund revenues, remain below levels recommended by the Government Finance

8 Officers Association for local governments and the 10% target established by San Francisco law.

9 There are restrictions on the use of these reserves, and even if entirely depleted, their levels would be

10 inadequate to cover a shortfall in federal funds for even a single year. To fully absorb the loss of all

11 federal funds, San Francisco would also have to suspend capital projects—causing significant job

12 loss—and make drastic service cuts in order to maintain a balanced budget, as it is legally required to

13 do.

14

143. Even a loss of 10% of annual federal funds would be calamitous for San Francisco. A

15 cut of $120 million would lead to severe public health and public safety impacts. San Francisco

16 currently has approximately 1,971 police officers, a level mandated by the Charter, but a $120 million

17 cut would likely require San Francisco to reduce that number significantly, with similar reductions in

18 the number of firefighters. Capital programs would be postponed, resulting in lost jobs, and social

19 service programs would be reduced or eliminated. General Fund Departments have identified specific

20 programs and services that they will need to cut if they must reduce their General Fund Support for

21 FY17-18 to help the Mayor’s Office balance the budget. These include, for example, services for

22 women that are domestic violence survivors, programming for low-income children and families, and

23 housing programs to support low-income residents.

24

144. The Executive Order’s threat to cut federal funds is manifestly coercive. This is why at

25 least one jurisdiction has already changed its policy about immigration detainers in response to the

26 Executive Order. The day after the Executive Order was issued, Miami-Dade County Mayor Carlos

27 Giménez instructed the county’s interim corrections director to “fully cooperate” with the Federal

28 government and comply with all immigration detainer requests, eliminating a previous requirement

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1 that the Federal government reimburse detainer costs. “It’s really not worth the risk of losing millions

2 of dollars to the residents of Miami-Dade County in discretionary money from the feds,” said Mayor

3 Giménez. Ray Sanchez, Florida’s Largest County to Comply with Trump’s Sanctuary Crackdown,

4 CNN Politics (Jan. 27, 2017, 6:34 PM ET), http://www.cnn.com/2017/01/27/politics/miami-dade-

5 mayor-sanctuary-crackdown/. There is little doubt that is exactly what the President intends this

6 coercive effect with his promise to defund Sanctuary Cities.

7

D. Budget Impact of the Executive Order

8

145. For FY16-17, San Francisco’s annual operating budget is approximately $9.6 billion.

9 Of this, approximately $1.2 billion is money provided by the Federal government for entitlement

10 programs, grants, and contracts, and other items. For the vast majority of the federal funds received by

11 San Francisco, there is no nexus between the purpose of the funds and immigration enforcement. Only

12 a small percentage of all federal funds received by San Francisco relate to either immigration or law

13 enforcement.

14

146. The concern about losing federal funds is so acute that the Board of Supervisors has

15 established the Budget and Finance Federal Select Committee, a new committee that will consider

16 issues related to the possible loss of federal funds as a result of the Executive Order and other federal

17 action.

18

147. San Francisco has already begun the seven-month process of adopting the annual

19 budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the

20 Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco

21 departments with detailed guidance on the preparation of departments’ budget requests. Most

22 San Francisco departments held public hearings on their budget proposals in January and February and

23 submitted their budget requests for the coming fiscal year to the Controller by February 21.

24 San Francisco law requires the Controller to submit a consolidated budget proposal to the Mayor by

25 March 1, the Mayor to submit a balanced budget to the Board of Supervisors by June 1, and the Board

26 of Supervisors to approve a balanced budget by August 1.

27

148. To meet the June 1 deadline, the Mayor must make fundamental budget decisions by

28 May 15, and input these decisions into San Francisco’s budget software by May 24. During the last

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1 week of May, the Controller’s Office reconciles and confirms all financial calculations in the Mayor’s

2 proposed budget, while the Mayor’s Budget Office finalizes the narrative publication that accompanies

3 the proposed budget.

4

149. The budget for the fiscal year beginning July 1, 2017 will be approximately $10 billion,

5 approximately $5 billion of which is in San Francisco’s General Fund. The remainder of the budget is

6 comprised of self-supporting activities at San Francisco’s enterprise departments, which focus on city-

7 related business operations and include the Port, the Municipal Transportation Agency, the Airport,

8 the Public Utilities Commission, and others. The use of funds in these operations is legally restricted

9 and cannot be redirected to backfill a shortfall in the General. Fund. Money in San Francisco’s

10 General Fund is used to support public services such as public health, human services, police and fire

11 services, and public works. Approximately $2 billion of General Fund money is legally dedicated for

12 specific purposes, leaving approximately $3 billion in discretionary funds.

13

150. One of the fundamental budget decisions the Mayor must make by May 15, 2017, is

14 whether to create a budget reserve to account for the possible loss of federal and state funds in the

15 coming fiscal year. This presents a Hobson’s choice. San Francisco, facing possible reductions, could

16 place funds into reserve at the beginning of the fiscal year, harming the public by reducing the amount

17 of money in San Francisco’s General Fund. Or San Francisco could budget based on the continued

18 receipt of federal and state funds, knowing that cuts could come suddenly, outside of the budget

19 process.

20

151. If unanticipated cuts come mid-year, the General Fund will take an even bigger hit at

21 that time, as there will be less time to absorb the loss of funds. Depending on the nature of the cuts,

22 they could lead to immediate service cuts, layoffs, or cancellation of contracts and associated

23 penalties.

24

152. If current levels of uncertainty remain by May 15, 2017, the Mayor will be forced to

25 propose a federal and state budget reserve. The final amount of the reserve will depend on the Mayor’s

26 assessment of the amount of funding at risk and the likelihood that federal or state funds will be cut.

27 Money used to fund the reserve is money that will not be available for General Fund programs and

28 services.

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153. A May 15, 2017, decision to set the reserve at a specified amount will have a real world

2 impact when the new fiscal year begins on July 1, 2017. Beginning on this date, funds allocated for the

3 reserve will sit in the reserve instead of being available for General Fund services and programs. Once

4 funds are placed in a federal and state budget reserve, they will remain there for the entire fiscal year

5 unless they are released in response to reliably detailed information about the timing and size of

6 federal or state funding cuts.

7

154. The Mayor must make a trade-off between putting money into a reserve and using it for

8 other San Francisco priorities, some of which are currently unfunded. For instance, the Department of

9 Homelessness and Supportive Housing needs an additional $19.5 million in the next two fiscal years

10 to make an impact in reducing homelessness in San Francisco. This money would fund a family

11 shelter expansion, youth housing subsidies, a resource center, and shelter maintenance and security. A

12 reserve would set money aside instead of using it for purposes like this.

13

155. Since the Executive Order issued, San Francisco has received inquiries from credit

14 rating agencies about the impact of the Executive Order on San Francisco’s finances. If credit rating

15 agencies downgrade their assessment of San Francisco, it will increase San Francisco’s borrowing

16 costs. The Executive Order imposes a “substantial contingent liability” to the extent that it

17 “immediately and directly affects the borrowing power, financial strength, and fiscal planning” of

18 San Francisco. See Clinton v. City of N.Y., 524 U.S. 417, 430-31 (1998).

19

CAUSES OF ACTION

20

COUNT ONE

21 DECLARATORY RELIEF – SAN FRANCISCO LAW COMPLIES WITH 8 U.S.C. § 1373

22

156. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

23 if fully set forth herein.

24

157. San Francisco contends that it complies with Section 1373. San Francisco

25 Administrative Code Chapters 12H and 12I do not prohibit, or in any way restrict, any government

26 entity or official from sending to, or receiving from, immigration officials information regarding the

27 citizenship or immigration status, lawful or unlawful, of any individual.

28

158. Defendants contend that San Francisco does not comply with Section 1373.

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1

159. An actual controversy presently exists between San Francisco and Defendants about

2 whether San Francisco complies with Section 1373.

3

160. A judicial determination resolving this controversy is necessary and appropriate at this

4 time.

5

COUNT TWO

6

DECLARATORY RELIEF – SAN FRANCISCO POLICIES

COMPLY WITH 8 U.S.C. § 1373

7

8

161. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

9 if fully set forth herein.

10

162. San Francisco contends that its policies comply with Section 1373. San Francisco does

11 not prohibit, or in any way restrict, any government entity or official from sending to, or receiving

12 from, immigration officials information regarding the citizenship or immigration status, lawful or

13 unlawful, of any individual.

14

163. Defendants contend that San Francisco does not comply with Section 1373.

15

164. An actual controversy presently exists between San Francisco and Defendants about

16 whether San Francisco complies with Section 1373.

17

165. A judicial determination resolving this controversy is necessary and appropriate at this

18 time. 19 20

COUNT THREE TENTH AMENDMENT – 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL

21

166. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

22 if fully set forth herein.

23

167. On its face, Section 1373 commandeers state and local governments in violation of the

24 Tenth Amendment to the Constitution by, inter alia, regulating the “States in their sovereign

25 capacity,” Reno, 528 U.S. at 151, limiting state authority to regulate internal affairs and determine the

26 duties and responsibilities of state employees, Gregory, 501 U.S. at 460, and ultimately forcing States

27 to allow their employees to use state time and state resources to assist in the enforcement of federal

28

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1 statutes regulating private individuals, Reno, 528 U.S. at 151, and to provide information that belongs

2 to the State and is available to them only in their official capacity, Printz, 521 U.S. at 932-33 & n.17.

3

168. As applied to invalidate state and local Sanctuary City laws, like San Francisco

4 Administrative Code Chapters 12H and 12I, which were enacted to further legitimate local interests

5 grounded in the basic police powers of local government and related to public health and safety,

6 Section 1373(a) commandeers state and local governments and violates the Tenth Amendment to the

7 United States Constitution.

8

COUNT FOUR

9

TENTH AMENDMENT, SEPARATION OF POWERS, AND SPENDING CLAUSE – EXECUTIVE ORDER SECTION 9(A)’S FUNDING RESTRICTIONS ARE

10

UNCONSTITUTIONAL

11

169. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

12 if fully set forth herein.

13

170. Executive Order Section 2(c) states: “It is the policy of the executive branch to . . .

14 Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

15 except as mandated by law.” Executive Order at 8799.

16

171. Executive Order Section 9 states: “It is the policy of the executive branch to ensure, to

17 the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8

18 U.S.C. 1373.” Id. at 8801.

19

172. Executive Order Section 9(a) contains a Funding Restriction stating: “In furtherance of

20 this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with

21 law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

22 jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law

23 enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to

24 designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary

25 jurisdiction.” Id.

26

173. The Funding Restriction violates the Tenth Amendment, the Spending Clause, and

27 Article I, sec. 1 of the United States Constitution by:

28

a. Exercising Spending Power that the Constitution grants to Congress;

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b. Imposing new funding conditions on existing federal funds;

2

c. Imposing funding conditions not germane to the purpose of the funds;

3

d. Imposing funding conditions so severe as to coerce compliance; and

4

e. Imposing funding conditions that require jurisdictions to act unconstitutionally.

5

COUNT FIVE

6

TENTH AMENDMENT – EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT

DIRECTIVE IS UNCONSTITUTIONAL

7

8

174. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

9 if fully set forth herein.

10

175. Executive Order Section 9(a) contains an Enforcement Directive stating: “The Attorney

11 General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

12 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

13 law.” Executive Order at 8801.

14

176. The Federal government has taken the position that a state or local jurisdiction that fails

15 to affirmatively assist federal immigration officials—by, for example, refusing to comply with a

16 detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations—hinders the

17 enforcement of federal law and violates Section 1373.

18

177. Accordingly, the Enforcement Directive commandeers state and local governments,

19 violating Tenth Amendment to the United States Constitution by, inter alia, compelling them to

20 enforce a federal program by imprisoning individuals subject to removal at the request of the Federal

21 government when those individuals would otherwise be released from custody.

22

23

PRAYER FOR RELIEF

24

Wherefore, San Francisco prays that the Court grant the following relief:

25

San Francisco Complies With Section 1373 (Count One and Two)

26

1. Declare that San Francisco laws comply with Section 1373;

27

2. Declare that San Francisco policies and practices comply with Section 1373;

28 //

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 // 23 // 24 // 25 // 26 // 27 // 28 //

3. Preliminarily and permanently enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply with Section 1373;
Section 1373 Is Unconstitutional (Count Three) 4. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face; 5. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for
receiving federal funds; 6. Declare that Section 1373(a) is invalid as applied to state and local Sanctuary City laws,
like San Francisco Administrative Code Chapters 12H and 12I, which were enacted for legitimate local purposes related to public health and safety; 7. Preliminarily and permanently enjoin Defendants from enforcing Section 1373(a) against jurisdictions that enact Sanctuary City laws for legitimate local purposes; Executive Order Section 9(a)’s Funding Restriction Is Unconstitutional (Count Four) 8. Declare the Funding Restriction in Executive Order invalid; 9. Preliminarily and permanently enjoin Defendants from enforcing the Funding Restriction in the Executive Order; Executive Order Section 9(a)’s Enforcement Directive Is Unconstitutional (Count Five) 10. Declare the Enforcement Directive in Executive Order invalid; 11. Preliminarily and permanently enjoin unconstitutional applications of the Enforcement Directive in Executive Order Section 9(a); Other Relief 12. Award San Francisco reasonable costs and attorney’s fees; and

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13. Grant any other further relief that the Court deems fit and proper.

2 Dated: February 27, 2017

3

DENNIS J. HERRERA

4

City Attorney RONALD FLYNN

5

JESSE C. SMITH YVONNE R. MERÉ

6

MOLLIE M. LEE SARA J. EISENBERG

7

Deputy City Attorneys

8 By: /s/ Dennis J. Herrera

9

DENNIS J. HERRERA

City Attorney

10

11

By: /s/ Mollie M. Lee

MOLLIE M. LEE

12

Deputy City Attorney

13

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO 14

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EXHIBIT 1

CHAPTER 12H: IMMIGRATION STATUS

Print

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San Francisco Administrative Code

CHAPTER 12H: IMMIGRATION STATUS

Page 1 of 2

Sec. 12H.1. Sec. 12H.2. Sec. 12H.3. Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

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(Added by OrdC.Ca37as5se-8e93,3:A1:p17p7.-c1-0cv/v2-04-/008904;48am85e5-nW-dWeHdHbOyOOrdD.Do22oc8cu-0um9m, eFeinlentNt4o23. 00-9310F3F2il,eilAedpdp0. 01203/-22/287-3/210/10797; OPrPda.ag96ge-e1644,3F4ioleofNf5o57. 8160022, App.

6/17/2016, Eff. 7/17/2016)

SEC. 12H.2-1. [REPEALED.]

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.

The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)

SEC. 12H.4. ENFORCEMENT.

The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

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San Francisco Administrative Code

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

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Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.

The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.

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Given that ciCvCailasisemem33:i1:g17r7a-ct-icvov-n0-0d00e4t48a8i5n5-eW-rWsHaHOreOisDsDuoeocdcubumymeienmntmt42i3g0-r3atiFoFinleiloedfdf0ic02e3/r2/s27w3/1/i1t7h7ouPtPajaugdgeiec4i4a6l7ooofvf5e5r7s8ight, and the

regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance,

there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by

probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil

immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE

"Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the

Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in

custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that

detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See

alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *10-

12 (N.D. Ill. filed May 5, 2014).)

On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require state or local law enforcement officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.

According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.

The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.

In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.

First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions

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about local lawCCeanasfseoer3c3:e1:m177e-cn-cvt'vs-0-l00ia04b48il85it5-yW-WfoHrHOcOonDsDtoitocucutiumomneaenlntvt4io23l0a-3tioFnFisleiliefdda0n02y3/2p/2e7r3/s1/o17n7isPPoavagegered4e47ta8ionofef5d57w8hen

immigration agents are unable to be present at the time of the person's release from local custody.

Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.

The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.

The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.

In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.2. DEFINITIONS.

"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed. (b) The individual has been acquitted of all criminal charges filed against him or her. (c) The individual has served all the time required for his or her sentence. (d) The individual has posted a bond, or has been released on his or her own recognizance. (e) The individual has been referred to pre-trial diversion services.

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"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.

"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.

"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.

"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.

"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.

"Personal information" means any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information.

"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).

"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.

(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and

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(2) A magCiCsatasrasetee33h:1:a17s7-dc-ecvtv-e0-r0m004in48e85d5-W-thWaHtHOtOherDeDoisoccpuurmombeaenbntlte423c0-a3usFeFitloeiledbde0l02ie3/v2/e273t/h1/1e77inPdPiavagidgeuea4l59i0soogf uf5i57lt8y of a Violent

Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.

(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.

(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:

(1) The individual either:

(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or

(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or

(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and

(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a) (3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.

(e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.

(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.4. PURPOSE OF THIS CHAPTER.
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The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary

notification of release of individuals, transmission of personal information, and civil immigration documents

based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.5. SEMIANNUAL REPORT.

By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.6. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
CODIFICATION NOTE
1. So in Ord. 204-13.

SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

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In enacting aCnCadasismeep3l3:e1:m177e-cn-cvtiv-n0-g000t4h48i8s55C-W-hWaHpHOteOr 1D2DoIocthcueummCeientynt ti4s23a0-s3suFmFilieilnedgd0a0n23/u2/n27d3/1e/1r7t7akPinPagagogenel5y512tooofpf5ro57m8ote the

general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of

which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.8.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.10.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.11.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

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EXHIBIT 3

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Presidential Documents

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Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens. Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
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Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as ‘‘Secure Communities’’ referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017–02102 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 25, 2017.

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Case 3:17-cv-00485-WHO Document 43-8 Filed 03/23/17 Page 1 of 2

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
6 840 Malcolm Road, Suite 200 Burlingame, CA 94010
7 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
8
BRUCE REED GOODMILLER (SBN 121491) 9 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 10 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 11 450 Civic Center Plaza
P.O. Box 4046 12 Richmond, CA 94804
Telephone: (510) 620-6509 13 Facsimile: (510) 620-6518

14 Attorneys for Non-Party City of Richmond

15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

16

17 CITY AND COUNTY OF SAN FRANCISCO
18
Plaintiff, 19
vs. 20
DONALD J. TRUMP, President of the 21 United States, UNITED STATES OF
AMERICA, JOHN F. KELLY, Secretary 22 of the United States Department of
Homeland Security, DANA J. BOENTE, 23 Acting Attorney General of the United
States, 24
Defendants. 25

Case No. 3:17-cv-00485-WHO
[PROPOSED] ORDER GRANTING ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES SHOULD BE RELATED
Complaint File: January 31, 2017 No Trial Date

26

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

[Proposed] ORDER GRANTING ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES SHOULD BE RELATED; Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 43-8 Filed 03/23/17 Page 2 of 2

1

On March 21, 2017, non-party City of Richmond (“Richmond”) filed an Administrative

2 Motion to Consider Whether Cases Should Be Related under Civil Local Rule 3-12. The Court

3 has already related the San Francisco and Santa Clara actions. Having considered the papers and

4 pleadings on file, the Court GRANTS the Administrative Motion to Consider Whether Cases

5 Should Be Related and ORDERS that the following cases be related:

6

x City and County of S.F. v. Trump et al., Case No 3:17-cv-00485–WHO

7

x County of Santa Clara v Trump, et al., Case No. 3:17-cv-00574-WHO

8

x City of Richmond v. Trump, et al., Case No. 3:17-cv-01535-SK

9

IT IS SO ORDERED

10 Dated:

11

______________________________________

HONORABLE WILLIAM H. ORRICK

12

JUDGE, UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

[Proposed] ORDER GRANTING ADMINISTRATIVE MOTION OF CITY OF RICHMOND TO CONSIDER WHETHER CASES SHOULD BE RELATED; Case No. 3:17-cv-00485-WHO
1

 
 Case 3:17-cv-00485-WHO Document 47 Filed 03/23/17 Page 1 of 4

1 Brett M. Schuman (SBN 189247) bschuman@goodwinlaw.com
2 Nicholas A. Reider (SBN 296440) nreider@goodwinlaw.com
3 Hayes P. Hyde (SBN 308031) hhyde@goodwinlaw.com
4 GOODWIN PROCTER LLP Three Embarcadero Center
5 San Francisco, California 94111 Tel.: +1 415 733 6000
6 Fax.: +1 415 677 9041

7 Neel Chatterjee (SBN 173985) nchatterjee@goodwinlaw.com
8 James Lin (SBN 310440) (application for admission to this Court pending)
9 jlin@goodwinlaw.com GOODWIN PROCTER LLP
10 135 Commonwealth Drive Menlo Park, California 94025
11 Tel.: +1 650 752 3100 Fax.: +1 650 853 1038
12
Attorneys for Amicus Curiae The International 13 Municipal Lawyers Association

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 SAN FRANCISCO DIVISION

17

CITY AND COUNTY OF SAN FRANCISCO, Case No. 3:17-cv-00485-WHO

18

Plaintiff,

THE INTERNATIONAL MUNICIPAL

19

LAWYERS ASSOCIATION’S MOTION

v.

FOR ADMINISTRATIVE RELIEF FOR

20

LEAVE TO FILE BRIEF AS AMICUS

DONALD J. TRUMP, President of the United CURIAE IN SUPPORT OF PLAINTIFF

21 States, UNITED STATES OF AMERICA,

CITY AND COUNTY OF SAN

JOHN F. KELLY, Secretary of United States FRANCISCO’S MOTION FOR

22 Department of Homeland Security,

PRELIMINARY INJUNCTION

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

Date:

April 12, 2017

Time:

2:00 p.m.

24

Defendants.

Judge:

Honorable William H. Orrick

Courtroom: Courtroom 2

25

Filed/Lodged Concurrently with:

26

1. Proposed Amicus Curiae Brief; and

2. Proposed Order Granting Mtn. for

27

Administrative Relief

28

THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION’S MTN. FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47 Filed 03/23/17 Page 2 of 4

1

Amicus Curiae The International Municipal Lawyers Association (“IMLA”) respectfully

2 moves this Court for leave to file the accompanying amicus brief in support of Plaintiff City and

3 County of San Francisco’s (“San Francisco”) Motion for Preliminary Injunction (“Motion”) pursuant 4 to this Court’s Order Regarding Amicus Briefing.1 Dkt. No. 31.

5

IMLA is a non-profit, professional organization that has been an advocate and resource for

6 local government attorneys since 1935. IMLA develops and advances solutions to important legal

7 issues faced by local governments, and serves as an international clearinghouse of legal information

8 and cooperation on municipal legal matters. IMLA collects and disseminates information to its

9 membership across the United States and Canada, and helps governmental officials prepare for

10 litigation and develop new local laws. Every year, IMLA’s legal staff provides accurate, up-to-date

11 information and valuable counsel to hundreds of requests from members. IMLA also provides a

12 variety of services, publications, and programs to help members facing legal challenges.

13

Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United

14 States,” 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”), directly affects IMLA members’

15 municipal clients. More specifically, the Executive Order conditions municipalities’ receipt of all

16 federal funding on, among other things, municipalities’ compliance with extra-judicial and

17 unconstitutional ICE detainer requests. The Executive Order thus places IMLA’s member lawyers

18 in untenable situations in advising their clients: either advise constitutional violations to ensure

19 continued receipt of mission-critical federal monies, or advise violation of the Executive Order and

20 risk termination of that federal funding. IMLA is therefore deeply interested in the issues presented

21 to the Court by the parties.

22

IMLA respectfully submits that consideration of amicus briefing in connection with the

23 Motion is desirable. With respect to IMLA in particular, IMLA’s proposed amicus brief provides

24 the perspective of attorneys across the country who must advise their municipal clients on whether

25 1 In a related case filed by the County of Santa Clara, the plaintiff also has filed a motion for a
26 nationwide preliminary injunction that presently is set for hearing on April 5, 2017. Given the similarities between the complaints and preliminary injunction motions filed by the plaintiffs in the
27 two related cases, IMLA’s amicus brief may be considered supportive of the preliminary injunction motion filed by the County of Santa Clara as well.
28 1

THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION’S

MTN. FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE

BRIEF AS AMICUS CURIAE

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47 Filed 03/23/17 Page 3 of 4

1 and how, if at all, those municipal clients should comply with the Executive Order. Moreover,

2 IMLA’s proposed, attached amicus brief is directly relevant to the issues raised in San Francisco’s

3 Motion. Specifically, IMLA explains that the Executive Order violates the federal spending power

4 because it conditions the receipt of federal funds on States and municipalities violating individuals’

5 Fourth Amendment rights, and because the Executive Order imposes a funding condition on all

6 federal funding that is not related to the purpose underlying all federal funding. Moreover, IMLA’s

7 proposed amicus brief explains that the Executive Order commandeers State and local law

8 enforcement in enforcing federal immigration laws, in violation of the Tenth Amendment. These

9 matters are directly relevant to the disposition of the issues in this matter before the Court.

10

WHEREFORE, IMLA respectfully request that this Court grant it leave to file the proposed,

11 attached amicus brief.

12

13 Dated: March 23, 2017

Respectfully submitted,

14

By: /s/ Brett M. Schuman

15

Brett M. Schuman (SBN 189247)

bschuman@goodwinlaw.com

16

Nicholas A. Reider (SBN 296440)

nreider@goodwinlaw.com

17

Hayes P. Hyde (SBN 308031)

hhyde@goodwinlaw.com

18

GOODWIN PROCTER LLP

Three Embarcadero Center

19

San Francisco, California 94111

Tel.: +1 415 733 6000

20

Fax.: +1 415 677 9041

21

Neel Chatterjee (SBN 173985)

nchatterjee@goodwinlaw.com

22

James Lin (SBN 310440) (application for

admission to this Court pending)

23

jlin@goodwinlaw.com

GOODWIN PROCTER LLP

24

135 Commonwealth Drive

Menlo Park, California 94025

25

Tel.: +1 650 752 3100

Fax.: +1 650 853 1038 26

Attorneys for The International Municipal

27

Lawyers Association

28 2
THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION’S MTN. FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47 Filed 03/23/17 Page 4 of 4

1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

3 United States District Court for the Northern District of California by using the CM/ECF system on

4 March 23, 2017. I further certify that counsel of record for all parties in this case are registered

5 CM/ECF users and that service will be accomplished by the CM/ECF system.

6

I certify under penalty of perjury that the foregoing is true and correct. Executed this 23rd

7 day of March 2017.

8

9

/s/ Brett M. Schuman

Brett M. Schuman

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1
THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION’S MTN. FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47-1 Filed 03/23/17 Page 1 of 19

1 Brett M. Schuman (SBN 189247) bschuman@goodwinlaw.com
2 Nicholas A. Reider (SBN 296440) nreider@goodwinlaw.com
3 Hayes P. Hyde (SBN 308031) hhyde@goodwinlaw.com
4 GOODWIN PROCTER LLP Three Embarcadero Center
5 San Francisco, California 94111 Tel.: +1 415 733 6000
6 Fax.: +1 415 677 9041

7 Neel Chatterjee (SBN 173985) nchatterjee@goodwinlaw.com
8 James Lin (SBN 310440) (application for admission to this Court pending)
9 jlin@goodwinlaw.com GOODWIN PROCTER LLP
10 135 Commonwealth Drive Menlo Park, California 94025
11 Tel.: +1 650 752 3100 Fax.: +1 650 853 1038
12
Attorneys for Amicus Curiae The International 13 Municipal Lawyers Association

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 SAN FRANCISCO DIVISION

17

CITY AND COUNTY OF SAN FRANCISCO, Case No. 3:17-cv-00485-WHO

18

Plaintiff,

BRIEF OF AMICUS CURIAE THE

19

INTERNATIONAL MUNICIPAL

v.

LAWYERS ASSOCIATION IN SUPPORT

20

OF PLAINTIFF CITY AND COUNTY OF

DONALD J. TRUMP, President of the United SAN FRANCISCO’S MOTION FOR

21 States, UNITED STATES OF AMERICA,

PRELIMINARY INJUNCTION

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

Date:

April 12, 2017

JEFFERSON B. SESSIONS, Attorney General Time:

2:00 p.m.

23 of the United States, DOES 1-100,

Judge:

Honorable William H. Orrick

Courtroom: Courtroom 2

24

Defendants.

25

26

27

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1

TABLE OF CONTENTS

2 I. 3 II. 4
5

PRELIMINARY STATEMENT .........................................................................................1
ARGUMENT .......................................................................................................................1
A. The Executive Order Unlawfully Induces States and Local Governments to Violate the Fourth Amendment. ..............................................................................1

6

1. The Executive Order Conditions Federal Funding On States and Local

Governments Complying with All ICE Detainer Requests. ........................2

7

2. Compliance with ICE Detainer Requests Lacking Probable Cause

8

Violates The Fourth Amendment.................................................................4

9

B. The Executive Order Violates the Spending Clause By Conditioning All

10

Federal Funding on Actions Not Reasonably Related to All Federal Funding........6

11

1. The Executive Order Conditions All Federal Funding On States and Local Governments Assisting with Enforcing Federal Immigration

12

Laws. ............................................................................................................7

13

2. Assistance with Enforcing Federal Immigration Laws Is a Condition

Not Reasonably Related to the Purpose of All Federal Funding. ................8

14 C. The Executive Order Violates the Tenth Amendment...........................................11
15

III. CONCLUSION..................................................................................................................12 16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Allen v. City of Portland,

5

73 F.3d 232 (9th Cir. 1995) .............................................................................................................5

6 Alliance for Open Society Int’l, Inc. v. U.S. Agency for Int’l Development,

651 F.3d 218 (2d Cir. 2011).............................................................................................................2 7

Am. Civil Liberties Union v. Mineta,

8

319 F. Supp. 2d 69 (D.D.C. 2004) ...................................................................................................2

9 Ariz. v. Thompson,

10

281 F.3d 248 (D.C. Cir. 2002) .........................................................................................................8

11 Ariz. v. United States,

132 S. Ct. 2492 (2012) .....................................................................................................................5

12

Baker v. McCollan,

13

443 U.S. 137 (1979).........................................................................................................................4

14 Bond v. United States,

15

134 S. Ct. 2077 (2014) ...................................................................................................................12

16 Comm. of Mass. v. U.S. Dep’t. of Health & Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010) ..........................................................................................1, 2

17

Dubois v. U.S. Dept. of Agriculture,

18

102 F.3d 1273 ..................................................................................................................................3

19 Galarza v. Szalczyk,

20

745 F.3d 634 (3d Cir. 2014).............................................................................................4, 5, 11, 12

21 Gerstein v. Pugh, 420 U.S. 103 (1975).........................................................................................................................4

22 Int’l Refugee Assistance Project v. Trump,

23

Case No. 8:17-cv-00361-TDC (D. Md. Mar. 16, 2017) ..............................................................3, 7

24 Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275 (1958).........................................................................................................................6
25

26 Kelly v. Robinson, 479 U.S. 36 (1986).........................................................................................................................12

27 Mendia v. Garcia,

28

165 F. Supp. 3d 861 (N.D. Cal. 2016) .............................................................................................4

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1 Mercado v. Dallas Cty., Texas, 2017 WL 169102 (N.D. Tex. Jan. 17, 2017) ...............................................................................4, 5
2

3

Miranda-Olivares v. Clackamas Cty., 2014 WL 1414305 (D. Or. Apr. 11, 2014) ..................................................................................4, 5

4 Morales v. Chadbourne,

5

2017 WL 354292 (D.R.I. Jan. 24, 2017) .........................................................................................5

6 N.Y. v. United States, 505 U.S. 144 (1992).........................................................................................................................9
7

Nat’l Federation of Independent Bus. v. Sebelius,

8

132 S. Ct. 2566 (2012) .........................................................................................................8, 11, 12

9 Orellana v. Nobles Cty.,

10

2017 WL 72397 (D. Minn. Jan. 6, 2017).....................................................................................4, 5

11 Printz v. United States,

521 U.S. 898 (1997).......................................................................................................................11 12

South Dakota v. Dole,

13

483 U.S. 203 (1987).............................................................................................................1, 2, 6, 9

14 State of Hawai’i v. Trump,

15

Case No. 1:17-cv-00050-DKW-KSC (D. Haw. Mar. 15, 2017)......................................................3

16 Steffel v. Thompson,

415 U.S. 452 (1974).........................................................................................................................8

17

Texas v. United States,

18

2016 WL 4138632 (N.D. Tex. Aug. 4, 2016)..................................................................................9

19 United States v. Brignoni-Ponce,

20

422 U.S. 873 (1975).........................................................................................................................4

21 United States v. Lopez, 514 U.S. 549 (1995).......................................................................................................................12

22

United States v. Morrison,

23

529 U.S. 598 (2000).......................................................................................................................12

24 United States v. Uni Oil, Inc.,

25

710 F.2d 1078 (5th Cir. 1983) .........................................................................................................4

26 Statutes

27 7 U.S.C. § 2020(t) ..................................................................................................................................8

28 7 U.S.C. § 2026......................................................................................................................................8

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1 8 U.S.C. § 1373..............................................................................................................................2, 3, 7

2 42 U.S.C § 403.......................................................................................................................................8
3 42 U.S.C. § 627......................................................................................................................................8
4 42 U.S.C. § 1396-1 ................................................................................................................................9
5 42 U.S.C. § 1983....................................................................................................................................5
6 Other Authorities
7 8 C.F.R. § 287.7 ...............................................................................................................................4, 11
8 42 C.F.R. § 430.30 .................................................................................................................................8
9
Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017)............................................................... passim 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. PRELIMINARY STATEMENT

2

Amicus Curiae International Municipal Lawyers Association (“IMLA”) submits this

3 memorandum with respect to Executive Order 13768, titled “Enhancing Public Safety in the Interior

4 of the United States.” Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive

5 Order”). IMLA is a nonprofit organization of local government lawyers. The goal of IMLA is to

6 develop fair and realistic legal solutions to problems facing local government lawyers. As the

7 lawyers charged with advising municipalities on how to deal with executive orders such as this one,

8 IMLA has a strong interest in ensuring fair and realistic legal solutions that also comply with the

9 law. The Executive Order does not comply with the law and it puts ethical municipal lawyers in an

10 untenable situation in advising their clients: either advise constitutional violations to ensure

11 continued receipt of mission-critical federal monies, or advise violation of the Executive Order and

12 risk termination of that federal funding.

13

The Executive Order violates the U.S. Constitution. First, the Executive Order requires State

14 and local governments to violate the Fourth Amendment in order to get federal funding. This is an

15 “illegitimate” and unconstitutional funding condition. South Dakota v. Dole, 483 U.S. 203, 210

16 (1987). Second, the Executive Order is overly broad because it is not tailored to the specific

17 governmental interest. Instead, the Executive Order conditions all federal funding on States’ and

18 local governments’ cooperation in enforcing immigration laws, even when the federal funding has

19 nothing to do with immigration. This, too, is unconstitutional. Id. at 207-08. Third, the Executive

20 Order commandeers State and local law enforcement, in violation of the Tenth Amendment.

21 II. ARGUMENT

22

A. The Executive Order Unlawfully Induces States and Local Governments to

Violate the Fourth Amendment. 23

24

The United States Supreme Court has held that Congress’s spending “power may not be used

25 to induce the States to engage in activities that would themselves be unconstitutional.” Dole, 107 S.

26 Ct. at 210. Where Congress imposes a condition on federal funding that requires States to “violate

27 the constitutional rights” of individuals, the funding condition is “illegitimate” and unconstitutional.

28 Id. at 211.; see also Comm. of Mass. v. U.S. Dep’t. of Health & Human Servs., 698 F. Supp. 2d 234,

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1 248-49 (D. Mass. 2010) (concluding that DOMA unconstitutionally exceeded Congress’s spending

2 power by “impermissibly condition[ing] the receipt of federal funding on the state’s violation of the

3 Equal Protection Clause of the Fourteenth Amendment”); Am. Civil Liberties Union v. Mineta, 319

4 F. Supp. 2d 69, 86-87 (D.D.C. 2004) (permanently enjoining enforcement of statute that conditioned

5 funding on unconstitutional infringement of First Amendment rights); Alliance for Open Society

6 Int’l, Inc. v. U.S. Agency for Int’l Development, 651 F.3d 218, 239 (2d Cir. 2011) (affirming

7 preliminary injunction barring enforcement of statute that conditioned funding on First Amendment

8 violations). Here, the Executive Order violates this fundamental precept: it explicitly coerces States

9 and local governments to unlawfully detain individuals in violation of those individuals’ Fourth 10 Amendment rights. See Dole, 107 S. Ct. at 210; Comm. of Mass., 698 F. Supp. 2d at 248-49.1

11

1. The Executive Order Conditions Federal Funding On States and Local

Governments Complying with All ICE Detainer Requests. 12

13

The Executive Order commands that if a jurisdiction does not abide by ICE detainer requests,

14 that jurisdiction is a “sanctuary jurisdiction” ineligible for federal funding. Section 9(a) of the

15 Executive Order directs the Attorney General and Secretary of the Department of Homeland

16 Security to withhold federal funding from “sanctuary jurisdictions.” Per Section 9(a), those officers

17 “shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

18 jurisdictions) are not eligible to receive Federal grants . . . .” (Emphasis added). In Section 9(b),

19 the Executive Order defines a “sanctuary jurisdiction” to be “any jurisdiction that ignore[s] or

20 otherwise fail[s] to honor any detainers with respect to . . . aliens.” (Emphasis added). Thus,

21 pursuant to Sections 9(a) and 9(b), if a State or local government “ignore[s] or otherwise fail[s] to

22 honor” ICE detainer requests,” that jurisdiction is a “sanctuary jurisdiction” that is no longer

23 “eligible” to receive federal funding.

24

Indeed, Defendants have not disputed this interpretation of the Executive Order. See Dkt.

25 No. 35 (Opp. to Mot.) at 12-13; see also Case No. 17-cv-485 (“Santa Clara Action”), Dkt. No. 46

26 1 The Executive Order here is of course not a statute enacted by Congress, but rather, an edict issued
27 by the President. Nonetheless, the limitations on the use of the federal spending power described in Dole and its progeny apply with at least equal force here, given that the President’s Executive Order
28 purports to wield the spending power that the Constitution vests exclusively with Congress.

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1 (Opp. to Santa Clara’s Mot.) at 11-12. Instead, Defendants fall back on their hollow assertion that

2 the Attorney General and/or Secretary of Homeland Security will further assess what constitutes a

3 “sanctuary jurisdiction,” and a “willful refusal to comply with 8 U.S.C. § 1373.” Dkt. No. 35, at 12-

4 13. But the government nowhere suggests that the Attorney General or Secretary could possibly

5 conclude that Sections 9(a) and 9(b) mean anything other than what they say, which is that a State or

6 local government that does not abide by ICE detainer requests is a “sanctuary jurisdiction” that

7 “shall” not be “eligible” for federal funding.

8

The Defendants’ statements corroborate this interpretation of the Executive Order’s plain

9 language. Defendants repeatedly and publicly explained that the term “sanctuary jurisdictions”

10 encompasses all jurisdictions that do not comply with both the letter of 8 U.S.C. § 1373 and with

11 ICE detainer requests. In particular, Defendants have labeled San Francisco – a jurisdiction that

12 complies with 8 U.S.C . § 1373 but not with ICE detainer requests (Dkt. No. 20, Am. Compl. (“AC”) 13 ¶¶ 26, 39-46) – as one of their primary “sanctuary jurisdiction” targets (id. ¶¶ 68-70).2 See, e.g., Int’l

14 Refugee Assistance Project v. Trump, Case No. 8:17-cv-00361-TDC, Dkt. No. 149 at 26-27 (D. Md.

15 Mar. 16, 2017) (“District of Maryland TRO Order”) (“Considering [Defendant Trump’s] statements

16 . . . is appropriate” as “[s]uch evidence is perfectly probative and is considered as a matter of

17 common sense; indeed courts are forbidden to turn a blind eye to the context in which the policy

18 arose.” (quoting Edwards v. Aguillard, 482 U.S. 578, 594-95 (1987) & McCreary Cty. v. Am. Civil

19 Liberties Union, 545 U.S. 844, 866 (2005) (internal quotation marks and alterations omitted)); State

20 of Hawai’i v. Trump, Case No. 1:17-cv-00050-DKW-KSC, Dkt. No. 219 at 28 (Order Granting Mot.

21 for Temporary Restraining Order) (D. Haw. Mar. 15, 2017) (Court was “enlightened by the specific

22 historical context, contemporaneous public statements, and specific sequence of events leading to 23 [executive order’s] issuance”).3

24 2 Defendants’ argument that the government is not bound by now-President Trump’s campaign
25 promises to defund sanctuary jurisdictions such as San Francisco (Opp. at 14) misses the mark because it ignores the many statements that Defendants made after President Trump took office and
26 issued the Executive Order. See AC ¶ 71. Moreover, whether campaign statements “bind” the federal government is a strawman where, here, the statements simply illuminate the meaning of the
27 language of the Executive Order.

28 3 See also United States v. Uni Oil, Inc., 710 F.2d 1078, 1084-86 (5th Cir. 1983) (finding executive branch representatives’ statements “dispositive” as to scope of Executive Order); see also Dubois v. 3

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1

2. Compliance with ICE Detainer Requests Lacking Probable Cause

Violates The Fourth Amendment.

2

The Executive Order demands States’ and local governments’ strict compliance with ICE 3

detainer requests, and makes no exception for instances where detainer requests are not supported by 4

probable cause. But States and local governments cannot constitutionally detain an individual based 5

solely on the fact that ICE requests the detention. That is prohibited by the Fourth Amendment. 6

Under the Fourth Amendment, “a fair and reliable determination of probable cause” must be 7

made before a state actor may constitutionally hold an individual in custody. See Baker v. 8

McCollan, 443 U.S. 137, 142 (1979); Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (probable cause is 9

necessary for any “extended restraint of liberty following arrest”). More specifically, although the 10

Fourth Amendment permits law enforcement to briefly detain an individual based on a reasonable 11

suspicion that the individual is engaged in criminal activity, “any further detention” – including by 12

holding an individual in custody – “must be based on consent or probable cause.” United States v. 13

Brignoni-Ponce, 422 U.S. 873, 882 (1975) (emphasis added); see also Miranda-Olivares v. 14

Clackamas Cty., 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014) (“Prolonged detention after a 15

seizure, such as full custodial confinement without a warrant, must be based on probable cause.”). 16

ICE detainer requests are not warrants based on probable cause. See Galarza v. Szalczyk, 17

745 F.3d 634, 637 (3d Cir. 2014) (“The detainer was accompanied by neither a warrant, an affidavit 18
of probable cause, nor a removal order.”).4 In fact, the applicable federal regulation governing ICE 19

detainer requests does not condition the issuance of such requests on the existence of probable cause. 20

See 8 C.F.R. § 287.7. Rather, the applicable regulation authorizes several categories of federal 21

officers to issue detainer requests whenever the federal government “seeks custody of an alien . . . 22

for the purpose of arresting and removing the alien,” regardless of whether there is probable cause to 23

believe that the suspected alien has committed a crime. Id. §§ 287.7(a)-(b). 24

25 U.S. Dept. of Agriculture, 102 F.3d 1273, 1293-94 (courts may consider “ordinar[y]” meaning and “common usage” of terms in executive order).
26 4 See also Mendia v. Garcia, 165 F. Supp. 3d 861, 889 (N.D. Cal. 2016) (sustaining claims predicated on lack of probable cause underlying ICE detainer request); Miranda-Olivares v.
27 Clackamas Cty., 2014 WL 1414305, at *10 (D. Or. Apr. 11, 2014) (ICE detainer request not founded on probable cause); Mercado v. Dallas Cty., Texas, 2017 WL 169102, at *7 (N.D. Tex. Jan. 17,
28 2017) (same); Orellana v. Nobles Cty., 2017 WL 72397, at *9 (D. Minn. Jan. 6, 2017) (same).

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1

ICE detainer requests also cannot meet the probable cause requirement to the extent they are

2 directed to civil, as opposed to criminal, conduct. The probable cause required to support the

3 custodial detention of an individual “can only exist in relation to criminal conduct” and that “civil

4 disputes cannot give rise to probable cause.” Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir.

5 1995) (emphasis added). Unauthorized presence in the United States is merely a civil infraction; “it

6 is not a crime.” Ariz. v. United States, 132 S. Ct. 2492, 2505 (2012). Accordingly, where law

7 enforcement detains an individual who lacks authorization to be in the country “based on nothing

8 more than” the individual’s “possible removability,” the “predicate” probable cause required to

9 justify the detention “is absent.” See id.

10

For these reasons, State and local governments violate the Fourth Amendment where they

11 “blindly compl[y]” with ICE detainer requests devoid of facts supporting a probable cause

12 determination. See Morales v. Chadbourne, 2017 WL 354292, at *13 (D.R.I. Jan. 24, 2017);

13 Galarza, 745 F.3d at 645 (reversing dismissal of section 1983 claims against county that complied

14 with ICE detainer request absent probable cause). In fact, State and local governments can be liable

15 for honoring ICE requests in violation of Fourth Amendment rights. See Orellana, 2017 WL 72397,

16 at *11 (denying county’s motion for summary judgment on claim under 42 U.S.C. § 1983 arising out

17 of unlawful detention); Mercado, 2017 WL 169102, at *7 (sustaining section 1983 claims against 18 County arising out of unlawful detention).5

19

Despite the fact that ICE detainer requests frequently do not establish the probable cause

20 required to justify the detentions they seek, and that detentions made pursuant to such ICE detainer

21 requests thus violate the Fourth Amendment, the Executive Order does not allow States and local

22 governments to decline to adhere to ICE detainer requests. To the contrary, the Executive Order

23 5 Prior to October 2011, Santa Clara spent on average $159 per day for each of the 135 inmates that
24 Santa Clara held pursuant to ICE detainer requests, or over $21,000 per day in total. See Santa Clara Action, Dkt. No. 26, at 7. Additionally, the potential civil exposure that jurisdictions face for
25 unconstitutional detentions carried out pursuant to ICE detainer requests is stunning. For example, the County in Miranda-Olivares settled the plaintiff’s wrongful detention claims for $30,100 and
26 was ordered to pay the plaintiff’s fees and costs, totaling $97,373.14. See Case No. 3:12-cv-2317ST, Dkt. No. 163 (Opinion and Order), at 1 (D. Or. Aug. 28, 2015). If Santa Clara honored all ICE
27 detainer requests, was sued by each of the 135 individuals it held pursuant to ICE detainer requests, and entered into comparable settlements with each of them, the aggregate cost of those settlements
28 alone would exceed $17,000,000.

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1 conditions “any” jurisdiction’s eligibility for federal funding on strict obedience with “any” ICE

2 detainer request, regardless of whether the detainer request is supported by probable cause. 3 Executive Order, §§ 9(a)–(b) (emphasis added).6 This sort of strongarm tactic to engage in unlawful

4 activity is unconstitutional. Dole, 107 S. Ct. at 2010.

5

The Executive Order thus presents municipal lawyers with a Hobson’s choice. On the one

6 hand, municipal lawyers could advise their clients to comply with the Executive Order by honoring

7 ICE detainer requests. To do so, municipal lawyers would have to counsel their clients to engage in

8 behavior that courts across the country have found to be both unconstitutional and grounds for

9 imposing civil liability. On the other hand, municipal lawyers could advise their clients not to abide

10 by the Executive Order’s provisions requiring compliance with ICE detainer requests. To so advise

11 their clients, however, municipal lawyers would be encouraging municipalities to engage in behavior

12 that jeopardizes mission-critical federal funding.

13

B. The Executive Order Violates the Spending Clause By Conditioning All Federal

Funding on Actions Not Reasonably Related to All Federal Funding. 14

15

The Supreme Court in Dole cautioned that conditions on federal funding are “illegitimate”

16 “if they are unrelated to the federal interest” in the “particular national projects or programs” through

17 which such funds are granted. See Dole, 483 U.S. at 207-08 (citing Massachusetts v. United States,

18 435 U.S. 444 (1978)); see also Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295 (1958)

19 (“[T]he Federal Government may establish and impose reasonable conditions relevant to federal 20 interest in the project and to the over-all objectives thereof”).7 The Executive Order here conditions

21 6 ICE recently published its first weekly Declined Detainer Outcome Report pursuant to Section 9(b) of the Executive Order. See https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf.
22 Tellingly, the report labels as “non-cooperative” (id. at 23) jurisdictions that refuse to honor detainer requests that are unsupported by probable cause. See id. at 24 (DeKalb County, Georgia deemed
23 non-cooperative because it “will not honor an ICE detainer unless ICE first presents the sheriff’s office with a warrant or ‘sufficient probable cause’”); id. at 25 (Montgomery County, Maryland
24 deemed non-cooperative because it “will not honor ICE detainers without adequate probable cause”).
25 7 As discussed herein, supra n.1, Dole and its progeny describe the limitations on the spending power that the Constitution vests with Congress. The Constitution does not vest with the President
26 any spending power. Thus, if anything, the funding condition imposed by the Executive Order is entitled to even less deference than a funding condition imposed through a statute duly enacted by
27 Congress. Cf. District of Maryland TRO Order, at 26-27 (the President’s power in the immigration context “derives from ‘the statutory authority conferred by Congress.’” (quoting Abourezk v.
28 Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986)).

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1 States’ and local governments’ eligibility for all federal funding on their assistance with the

2 enforcement of federal immigration laws. The enforcement of federal immigration laws, however, is

3 not related to all federal funding programs and projects – not even close.

4

1. The Executive Order Conditions All Federal Funding On States and

Local Governments Assisting with Enforcing Federal Immigration Laws. 5

6

Pursuant to the Executive Order, a State’s or local government’s eligibility for any federal

7 funding is contingent upon the State or local government complying with both 8 U.S.C § 1373 and

8 ICE detainer requests. As discussed, supra at 2-3, under the Executive Order, a “sanctuary

9 jurisdiction” is any jurisdiction that fails to comply with 8 U.S.C § 1373 and ICE detainer requests.

10 According to the Executive Order, “[s]anctuary jurisdictions . . . willfully violate Federal law.”

11 Executive Order, § 1. As Section 2(c) states, “[i]t is the policy of the executive branch to ensure that

12 jurisdictions that fail to comply with applicable Federal law” – i.e., sanctuary jurisdictions – “do not

13 receive Federal funds.” (Emphasis added). Likewise, as Section 9(a) states, the Attorney General

14 and Secretary of Homeland Security “shall ensure” that “sanctuary jurisdictions” are “not eligible to

15 receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney

16 General or the Secretary.” (Emphasis added).

17

Although Section 2(c) of the Executive Order speaks of withholding “Federal funds” from

18 sanctuary jurisdictions, whereas Section 9(a) speaks of withholding “Federal grants,” this is largely a

19 distinction without a difference. Indeed, the White House has used the terms “federal funding” and

20 “federal grants” interchangeably when explaining that the Executive Order is intended to cut off all

21 federal monies to sanctuary jurisdictions. In the words of White House Press Secretary Sean Spicer,

22 the Executive Order “strip[s] federal grant money from sanctuary states and cities,” “halt[s] federal

23 funding for sanctuary cities,” and is “very clear . . . that federal funds . . . should not be used to help

24 fund sanctuary cities.” AC ¶ 71; see also id. ¶ 72 (the Executive Order is a “weapon” to “defund”

25 sanctuary jurisdictions by depriving them of “the money they need to properly operate,” and

26

27

28

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1 “make[s] sure” that sanctuary jurisdictions “don’t get federal government funding”).8 Thus, as

2 Defendants have made clear, the Executive Order imposes a condition on all federal funding.

3

Nor is there any distinction between funds paid through a “grant” and funds paid in

4 connection with “entitlement programs.” Indeed, although San Francisco speaks of funding it

5 receives through “grants” and through “entitlement programs,” including Medicaid, Temporary

6 Assistance for Needy Families (“TANF”), Supplemental Nutrition Assistance Program (“SNAP”),

7 and Foster Care (AC ¶ 134), it is indisputable that federal funds paid in connection with each of

8 these entitlement programs are “grants.” See, e.g., Nat’l Federation of Independent Bus. v. Sebelius,

9 132 S. Ct. 2566, 2601 (2012) (federal Medicaid funding is a “grant”); 42 C.F.R. § 430.30 (same);

10 Ariz. v. Thompson, 281 F.3d 248, 250 (D.C. Cir. 2002) (TANF “provides federal block grants that

11 states may use for their own public assistance programs”); 42 U.S.C § 403 (TANF provides “Grants

12 to States”); 7 U.S.C. §§ 2020(t) & 2026 (federal “grants” used to fund SNAP eligibility

13 determinations, improved access to benefits, and research); 42 U.S.C. § 627 (federal government 14 funds foster care through “matching grants”).9

15

2. Assistance with Enforcing Federal Immigration Laws Is a Condition Not

Reasonably Related to the Purpose of All Federal Funding. 16

17

San Francisco and other jurisdictions across the country receive federal funding through

18 programs and projects that have absolutely nothing to do with the enforcement of federal

19 immigration laws. Assisting with the enforcement of federal immigration laws, however, is the

20 condition that the Executive Order purports to impose on funding from those wholly unrelated

21 8 Defendants nowhere dispute that the Executive Order, on its face and construed in conjunction with 22 the White House’s statements regarding the order’s expansive scope, puts all federal funding at risk.
Instead, Defendants suggest that the executive branch may choose to contradict the express terms of 23 the Executive Order and apply the Executive Order more narrowly. See Dkt. 35, at 13; Santa Clara
Action, Dkt. No. 46, at 18. Defendants have no support for their assertion that a facially 24 unconstitutional executive order withstands scrutiny because it might or might not be applied
constitutionally.
25 9 Jurisdictions across the country are making budgeting decisions, including whether or not to continue critical programs that depend on federal funding. Particularly given Defendants’ repeated
26 statements confirming their intent to defund sanctuary jurisdictions, sanctuary jurisdictions need not wait until Defendants make good on their promises. Whether the Executive Order is
27 unconstitutional is a ripe issue. See Steffel v. Thompson, 415 U.S. 452, 459 (1974) (after being warned of prosecution by police, plaintiff need not “first expose himself to actual arrest or
28 prosecution” before challenging a statute).

8

BRIEF OF AMICUS CURIAE THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF

PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47-1 Filed 03/23/17 Page 14 of 19

1 programs and projects. The Executive Order’s funding condition is thus “illegitimate.” See Dole,

2 483 U.S. at 207-08; see also N.Y. v. United States, 505 U.S. 144, 167 (1992) (federal funding

3 conditions “must (among other requirements) bear some relationship to the purpose of the federal

4 spending[;] otherwise, of course, the spending power could render academic the Constitution’s other

5 grants and limits of federal authority”).

6

For example, San Francisco receives Medicaid funding from the federal government. AC ¶

7 134. Medicaid’s purpose is to “enabl[e] each State . . . to furnish (1) medical assistance on behalf of

8 families with dependent children and of aged, blind, or disabled individuals, whose income and

9 resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and

10 other services to help such families and individuals attain or retain capability for independence or

11 self-care.” 42 U.S.C. § 1396-1. The federal government pays no Medicaid funding to enable States

12 to provide medical assistance to undocumented immigrants, save for narrowly defined medical

13 emergencies. Assisting the federal government with the enforcement of federal immigration laws

14 has absolutely nothing to do with furnishing medical and rehabilitation services to individuals who

15 are unable to afford such services, particularly where undocumented immigrants are largely 16 ineligible to receive such services in the first place.10

17

By way of further example:

18

x Florida’s Department of Economic Opportunity is to receive a federal grant of up to

19 $7,035,611 to fund “disaster relief employment for eligible individuals in clean-up and recovery

20 efforts resulting from the effects of Florida Hurricane Matthew.”11

21

x Missoula, Montana recently received a federal Small Community Air Service

22 Development grant to fund a “new service from Missoula International Airport to the southern 23 United States, specifically targeting the North Texas region.”12

24 10 Cf. Texas v. United States, 2016 WL 4138632, at *16-17 (N.D. Tex. Aug. 4, 2016) (sustaining
25 constitutional challenge to condition on Medicaid funding requiring States to reimburse healthcare organizations serving individuals who did not qualify for Medicaid).
26 11 See https://www.doleta.gov/DWGs/Grant-Awards/docs/FL-Disaster-Hurricane-Matthew-One27 Rager-PY16.pdf.
12 See https://www.transportation.gov/sites/dot.gov/files/docs/FY%2016%20SCASDP%20 28 Selection%20Order%202016-6-21.pdf.

9

BRIEF OF AMICUS CURIAE THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF

PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

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1

x The City of Providence, Rhode Island – which has already declared itself a sanctuary

2 city13 – has received a federal grant of $25,000 from the National Endowment for the Arts “[t]o

3 support a creative collaboration between Trinity Repertory Company, The Steel Yard, and

4 neighborhood residents to present public performances of adaptations of the works of

5 Shakespeare.”14

6

x The City of Little Rock, Arkansas received a grant of nearly $500,000 from the

7 National Park Service’s African American Civil Rights Grant Program, paid through the Historic

8 Preservation Fund for the preservation of Central High School, a civil rights monument.15

9

x The Department of Labor has given the City of Madison, Wisconsin over $150,000 to

10 research and analyze the development and implementation of a paid-leave program for city

11 employees.16

12

x The Idaho State Department of Agriculture has received through the U.S. Department

13 of Agriculture’s Specialty Crop Block Grant program nearly $2,000,000 to fund sixteen projects, one

14 of which is designed to “fill significant knowledge gaps in the Fusarium proliferatum [fungus] and 15 onion interaction that results in onion bulb rot.”17

16

Enforcing federal immigration laws is not related to States’ or local governments’ hurricane

17 recovery efforts, flight services, neighborhood productions of Romeo and Juliet, preservation of civil

18 rights monuments, paid-leave research, or crop blights. But the Executive Order threatens to cut all

19 of this funding unless States and local governments assist with enforcing federal immigration laws.

20

21

22

23 13 See “Mayor Elorza now calls Providence a sanctuary city, but isn’t planning policy changes,” Dan McGowan (Jan. 31, 2017), available at http://wpri.com/2017/01/31/mayor-elorza-now-calls-
24 providence-a-sanctuary-city-but-isnt-planning-policy-changes/.
25 14 See Nat’l Endowment for the Arts, Grant No. 16-6200-7049, available at https://apps.nea.gov/grantsearch/.
26 15 See https://www.nps.gov/orgs/1207/01-12-2017-civil-rights-grants.htm.
27 16 See https://www.cityofmadison.com/news/city-of-madison-awarded-department-of-labor-grant. 17 See https://www.ams.usda.gov/sites/default/files/media/SCBGP2016DescriptionofFundedProjects
28 .pdf

10

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PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

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Case 3:17-cv-00485-WHO Document 47-1 Filed 03/23/17 Page 16 of 19

1

C. The Executive Order Violates the Tenth Amendment

2

The Tenth Amendment demands that “powers not delegated to the United States by the

3 Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

4 people.” U.S. Const., Art. X. Pursuant to the Tenth Amendment, “[t]he Federal Government may

5 neither issue directives requiring the States to address particular problems, nor command the States’

6 officers, or those of their political subdivisions, to administer or enforce a federal regulatory

7 program.” Printz v. United States, 521 U.S. 898, 935 (1997). This is exactly what the Executive

8 Order does, in violation of the Tenth Amendment.

9

The Third Circuit’s decision in Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), is directly

10 on point. There, the Court addressed whether 8 C.F.R. § 287.7 – the federal regulation authorizing

11 the issuance of ICE detainers – empowers federal officers to command States and local governments

12 to hold suspected aliens in custody. Id. at 643-45. The Court carefully analyzed the relevant case

13 law, as well as the text of Section 287.7 providing that the federal government “shall incur [no]

14 fiscal obligation” related to any detainer request. Id. at 643-44 (citing 8 C.F.R. § 287.7(e)). The

15 Court then acknowledged that “[u]nder the Tenth Amendment, immigration officials may not order

16 state and local officials to imprison suspected aliens subject to removal at the request of the federal

17 government,” and that a “command to detain federal prisoners at state expense is exactly the type of

18 command that has historically disrupted our system of federalism.” Id. Given the “constitutional

19 problems” that would arise if ICE detainer requests commanded States and local governments to

20 house suspected aliens at their own cost, the Court concluded that the language of Section 287.7

21 “authoriz[ed] only permissive requests.” Id. at 645.

22

Here, the Executive Order elevates ICE detainer requests from permissive to mandatory, and

23 thus presents precisely the same “constitutional problems” that concerned the Galarza Court.

24 Indeed, the Executive Order effectively commands States and local governments to honor ICE

25 detainer requests by resorting to “economic dragooning that leaves the States” and local

26 governments “with no real option but to acquiesce.” See Sebelius, 132 S. Ct. at 2605. The funding

27 condition here is just as coercive as the one struck down in Sebelius. Specifically, in Sebelius, the

28 Court concluded that imposing a funding condition on approximately 10% to 16% of a State’s total

11

BRIEF OF AMICUS CURIAE THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF

PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

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Case 3:17-cv-00485-WHO Document 47-1 Filed 03/23/17 Page 17 of 19

1 budget was an unconstitutional “gun to the head.” Id. at 2604-05. The same result follows here,

2 where the Executive Order imposes a condition on approximately 13% of San Francisco’s total

3 budget. AC ¶ 93. The Executive Order is thus unconstitutional because it puts a gun to the head of

4 States and local governments, coercing them to “imprison suspected aliens subject to removal at the

5 request of the federal government,” in violation of the Tenth Amendment. See Galarza, 745 F.3d at

6 643-45.

7

This unconstitutional defect dramatically upends police powers traditionally vested with the

8 States and local governments. Indeed, “the principle that the Constitution created a Federal

9 Government of limited powers, while reserving a generalized police power to the States, is deeply

10 ingrained in our constitutional history.” United States v. Morrison, 529 U.S. 598, 619 (2000); Bond

11 v. United States, 134 S. Ct. 2077, 2086 (2014) (“Perhaps the clearest example of traditional state

12 authority is the punishment of local criminal activity.”). The reservation of the general police power

13 to the States and local governments was no accident. As courts have long recognized, State and

14 local municipalities are best equipped to design and maintain law enforcement policies to enhance

15 the safety of their communities, and thus “[t]he right to formulate and enforce penal sanctions is an

16 important aspect of the sovereignty retained by the States.” Kelly v. Robinson, 479 U.S. 36, 47

17 (1986) (recognizing “fundamental policy against federal interference with state criminal

18 prosecutions”); see also United States v. Lopez, 514 U.S. 549 n.3 (1995) (“Under our federal system,

19 the States possess primary authority for defining and enforcing the criminal law.”).

20

Here in particular, San Francisco has already made the determination that complying with

21 ICE detainer requests “undermine[s]” law enforcement by “instilling fear in immigrant communities

22 of coming forward to report crimes and cooperate with local law enforcement agencies.” AC ¶ 33.

23 The Executive Order casts aside this locally-sensitive determination, instead imposing a blanket

24 policy that dictates how San Francisco and all other State and local governments are required to

25 operate, leaving them less safe and less engaged. To prevent this harm, this Court should enjoin the

26 enforcement of the unconstitutional Executive Order.

27 III. CONCLUSION

28

For all the foregoing reasons, the Executive Order is unconstitutional.

12

BRIEF OF AMICUS CURIAE THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF

PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47-1 Filed 03/23/17 Page 18 of 19

1 Dated: March 23, 2017

Respectfully submitted,

2

By: /s/ Brett M. Schuman

3

Brett M. Schuman (SBN 189247)

bschuman@goodwinlaw.com

4

Nicholas A. Reider (SBN 296440)

nreider@goodwinlaw.com

5

Hayes Hyde (SBN 308031)

hhyde@goodwinlaw.com

6

GOODWIN PROCTER LLP

Three Embarcadero Center

7

San Francisco, California 94111

Tel.: +1 415 733 6000

8

Fax.: +1 415 677 9041

9

Neel Chatterjee (SBN 173985)

nchatterjee@goodwinlaw.com

10

James Lin (SBN 310440) (application for

admission to this Court pending)

11

jlin@goodwinlaw.com

GOODWIN PROCTER LLP

12

135 Commonwealth Drive

Menlo Park, California 94025

13

Tel.: +1 650 752 3100

Fax.: +1 650 853 1038

14

Attorneys for The International Municipal

15

Lawyers Association

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BRIEF OF AMICUS CURIAE THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF

PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47-1 Filed 03/23/17 Page 19 of 19

1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

3 United States District Court for the Northern District of California by using the CM/ECF system on

4 March 23, 2017. I further certify that counsel of record for all parties in this case are registered

5 CM/ECF users and that service will be accomplished by the CM/ECF system.

6

I certify under penalty of perjury that the foregoing is true and correct. Executed this 23rd

7 day of March 2017.

8

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/s/ Brett M. Schuman

Brett M. Schuman

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BRIEF OF AMICUS CURIAE THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF

PLAINTIFF’S MOT. FOR PRELIMINARY INJUNCTION

CASE NO. 3:17-CV-00485-WHO

Case 3:17-cv-00485-WHO Document 47-2 Filed 03/23/17 Page 1 of 3

1 Brett M. Schuman (SBN 189247) bschuman@goodwinlaw.com
2 Nicholas A. Reider (SBN 296440) nreider@goodwinlaw.com
3 Hayes P. Hyde (SBN 308031) hhyde@goodwinlaw.com
4 GOODWIN PROCTER LLP Three Embarcadero Center
5 San Francisco, California 94111 Tel.: +1 415 733 6000
6 Fax.: +1 415 677 9041

7 Neel Chatterjee (SBN 173985) nchatterjee@goodwinlaw.com
8 James Lin (SBN 310440) (application for admission to this Court pending)
9 jlin@goodwinlaw.com GOODWIN PROCTER LLP
10 135 Commonwealth Drive Menlo Park, California 94025
11 Tel.: +1 650 752 3100 Fax.: +1 650 853 1038
12 Attorneys for The International Municipal
13 Lawyers Association

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 SAN FRANCISCO DIVISION

17

CITY AND COUNTY OF SAN FRANCISCO, Case No. 3:17-cv-00485-WHO

18

Plaintiff,

[PROPOSED] ORDER GRANTING THE

19

INTERNATIONAL MUNICIPAL

v.

LAWYERS ASSOCIATION’S MOTION

20

FOR ADMINISTRATIVE RELIEF FOR

DONALD J. TRUMP, President of the United LEAVE TO FILE AN AMICUS CURIAE

21 States, UNITED STATES OF AMERICA,

BRIEF

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

Date:

April 12, 2017

JEFFERSON B. SESSIONS, Attorney General Time:

2:00 p.m.

23 of the United States, DOES 1-100,

Courtroom: Courtroom 2

Judge:

Honorable William H. Orrick

24

Defendants.

25

26

27

28

[PROPOSED] ORDER GRANTING MOTION FOR FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

CASE NO. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 47-2 Filed 03/23/17 Page 2 of 3

1

Now, therefore, it is hereby ORDERED that:

2

Upon consideration of The International Municipal Lawyers Association Motion for

3 Administrative Relief for Leave to File an Amicus Curiae Brief in Support of Plaintiff City and

4 County of San Francisco’s Motion for Preliminary Injunction, the Court finds that the proposed

5 amicus curiae brief may assist in the determination of the matters before this Court.

6

The International Municipal Lawyers Association is granted leave to file its amicus curiae

7 brief.

8

9

10 Dated: ________________ , 2017 11 12

HON. WILLIAM H. ORRICK United States District Judge

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[PROPOSED] ORDER GRANTING MOTION FOR FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

CASE NO. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 47-2 Filed 03/23/17 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

3 United States District Court for the Northern District of California by using the CM/ECF system

4 on March 23, 2017. I further certify that counsel of record for all parties in this case are registered

5 CM/ECF users and that service will be accomplished by the CM/ECF system.

6

I certify under penalty of perjury that the foregoing is true and correct. Executed this 23rd

7 day of March 2017.

8

9

/s/ Brett M. Schuman

Brett M. Schuman

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[PROPOSED] ORDER GRANTING MOTION FOR FOR ADMINISTRATIVE RELIEF FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

CASE NO. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 52 Filed 03/24/17 Page 1 of 3

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

STATEMENT OF SUPPORT REGARDING

Plaintiff,

CITY OF RICHMOND’S ADMINISTRATIVE

19

MOTION TO CONSIDER WHETHER CASES

vs.

SHOULD BE RELATED

20

DONALD J. TRUMP, President of the United Date Filed: January 31, 2017

21 States, UNITED STATES OF AMERICA,

Trial Date: Not set

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

JEFFERSON B. SESSIONS, Attorney General

23 of the United States, DOES 1-100,

24

Defendants.

25

26

27

28
CCSF v. President Trump, et al; Case No. 17-00485 CCSF’s Statement of Support

N:\CXLIT\LI2017\171027\01180334.docx

Case 3:17-cv-00485-WHO Document 52 Filed 03/24/17 Page 2 of 3

1 1. INTRODUCTION

2

The City of Richmond (“Richmond”) filed an Administrative Motion (the “Administrative

3 Motion”) to consider whether City of Richmond v. Trump, et. al. Case No. 3:17-cv-01535-SK (the

4 “Richmond Action”) may be related to City and County of S.F. v. Trump et al., Case No. 3:17-cv-

5 00485-WHO (the “San Francisco Action”) and County of Santa Clara v. Trump et al., Case No. 3:17-

6 cv-00574-WHO (the “Santa Clara Action”) under Civil Local Rule 3-12. See Dkt. 43. Pursuant to

7 Civil Local Rule 3-12(d), San Francisco files this Statement in Support of Richmond’s Administrative

8 Motion.

9 2. 10

DISCUSSION “An action is related to another when: (1) The actions concern substantially the same parties,

11 property, transaction or event; and (2) it appears likely that there will be an unduly burdensome

12 duplication of labor and expense or conflicting results if the cases are conducted before different

13 Judges.” N.D. Cal. Civ. L.R. 3-12(a).

14

Like the San Francisco Action and the Santa Clara Action, the Richmond Action challenges the

15 constitutionality of President Donald J. Trump’s January 25, 2017 executive order directing specified

16 actions against state, local, and municipal governments deemed to be so-called “sanctuary

17 jurisdictions,” Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). While

18 each Action has certain independent claims, there is substantial overlap in the claims, arguments, and

19 relief sought in the three Actions. Each Action claims that Section 9 the Executive Order violates the

20 Tenth Amendment, Separation of Powers, and the Spending Clause, and each Action seeks declaratory

21 and injunctive relief preventing enforcement of Section 9 the Executive Order.

22

There is also substantial overlap in the named defendants. San Francisco, Santa Clara, and

23 Richmond each sue President Donald J. Trump, Department of Homeland Security Secretary

24 John F. Kelly, and Attorney General Jefferson B. Sessions. San Francisco and Richmond also name as

25 a defendant the United States, while Santa Clara also names Acting Director of the Office of

26 Management and Budget Mark Sandy.

27 //

28 //

CCSF v. President Trump, et al; Case No. 17-00485

1

CCSF’s Statement of Support

N:\CXLIT\LI2017\171027\01180334.docx

Case 3:17-cv-00485-WHO Document 52 Filed 03/24/17 Page 3 of 3

1

Given the overlap in parties, factual and legal issues involved, and the relief sought in the three

2 Actions, it is possible that conducting the Actions in two courts simultaneously may lead to

3 unnecessary duplication of effort and the potential for conflicting results.

4 3. CONCLUSION

5

For the foregoing reasons, San Francisco joins Richmond in respectfully requesting that the

6 Court consider whether the Richmond Action is related to the San Francisco Action and the

7 Santa Clara Action under Local Rule 3-12.

8 Dated: March 24, 2017

9

DENNIS J. HERRERA

10

City Attorney RONALD FLYNN

11

JESSE C. SMITH YVONNE R. MERÉ

12

CHRISTINE VAN AKEN TARA STEELEY

13

MOLLIE M. LEE SARA J. EISENBERG

14

MATTHEW S. LEE NEHA GUPTA

15

Deputy City Attorneys

16

17

18

By: /s/ Mollie M. Lee

MOLLIE M. LEE

19

Deputy City Attorney

20

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

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28

CCSF v. President Trump, et al; Case No. 17-00485

2

CCSF’s Statement of Support

N:\CXLIT\LI2017\171027\01180334.docx

 
 Case 3:17-cv-00485-WHO Document 53 Filed 03/24/17 Page 1 of 2
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER

A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to case
17-cv-00485-WHO City and County of San Francisco v. Donald J. Trump
I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.

Case

Title

Related Not Related

17-cv-00574-WHO County of Santa Clara v. Donald J. Trump WHO

17-cv-01535-SK City of Richmond v. Trump

WHO

ORDER

The parties are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be re- noticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established
1

Case 3:17-cv-00485-WHO Document 53 Filed 03/24/17 Page 2 of 2
in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

Dated: March 24, 2017

By: ________________________ William H. Orrick United States District Judge

2

 
 Case 3:17-cv-00485-WHO Document 58 Filed 03/29/17 Page 1 of 5

1 DARREN S. TESHIMA (SBN 238875)

dteshima@orrick.com 2 JAZMIN HOLMES (SBN 295312)

3

jholmes@orrick.com DANIEL S. GUERRA (SBN 267559)

4 dguerra@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP

5 The Orrick Building

405 Howard Street 6 San Francisco, CA 94105-2669

7

Telephone: Facsimile:

(415) 773-5700 (415) 773-5759

8 Attorneys for Amici Curiae
9 Public Schools, Public School
Districts, and Associations of Educators 10

11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 SAN FRANCISCO DIVISION
14

15 CITY AND COUNTY OF SAN FRANCISCO,
16 Plaintiff,
17 vs.
18 DONALD J. TRUMP, President of the United 19 States, UNITED STATES OF AMERICA,
JOHN F. KELLY, Secretary of United States 20 Department Homeland Security, JEFFERSON
B. SESSIONS, Attorney General of the United 21 States, DOES 1-100 et al.,

22

Defendants.

Case No. 3:17-cv-00485-WHO
PUBLIC SCHOOLS, SCHOOL DISTRICTS AND ASSOCIATIONS OF EDUCATORS' MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

23

24

25

26

27

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MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Case 3:17-cv-00485-WHO Document 58 Filed 03/29/17 Page 2 of 5

1

INTRODUCTION

2

Public schools, school districts, educational associations, and individual educators (the

3 “Educational Amici”) respectfully move for leave to file an amicus curiae brief in support of the

4 City and County of San Francisco’s Motion for Preliminary Injunction. Pursuant to the Court’s

5 March 21, 2017 Order Regarding Amicus Briefing, Educational Amici file this administrative

6 motion for leave to file their amicus brief. A copy of the proposed brief is attached as Exhibit A to

7 this motion. Plaintiff has consented to the filing of this motion and the accompanying amicus brief.

8 Defendant has informed Educational Amici that it takes no position on the current filing.

9

IDENTITY AND INTEREST OF AMICUS CURIAE

10

The Educational Amici are located throughout the State of California and are at the heart of

11 local education communities. They operate schools and school districts, teach and nurture our

12 children, interact with student families, and foster the sense of community and inclusiveness

13 essential for successful educational outcomes.

14

The Education Amici include nine public charter schools, Academia Avance Charter, Alta

15 Public Schools, Aspire Public Schools, Camino Nuevo Charter Academy, GALS LA (Girls Athletic

16 Leadership School - Los Angeles), Green Dot Public Schools, KIPP Bay Area Schools, Semillas

17 Community Schools and Sunrise Middle School; eight school districts, Berryessa Union School

18 District, Sacramento City Unified School District, San Diego Unified School District, San Francisco

19 Unified School District, Santa Clara Unified School District, Sunnyvale School District,

20 Sweetwater Union High School District and Wiseburn Unified School District; three community

21 college districts, Palomar College, San Diego Community College District and Southwestern

22 College; five educational associations, ACSA (Association of California School Administrators),

23 CCSA (California Charter Schools Association), CFT (California Federation of Teachers), CLSBA

24 (California Latino School Boards Association) and CTA (California Teachers Association); and one

25 superintendent in his official capacity, Benjamin H. Picard, Ed.D. (Superintendent of Schools,

26 Sunnyvale School District).

27

Given their position in the educational system, the Educational Amici are particularly aware

28 of the impact of the President Donald J. Trump’s Executive Order entitled “Enhancing Public - 1 -
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Case 3:17-cv-00485-WHO Document 58 Filed 03/29/17 Page 3 of 5

1 Safety in the Interior of the United States” (the “Executive Order”) on our students, their families,

2 and the broader educational system. Educational Amici, who provide children with their

3 constitutionally guaranteed right to an education, Plyler v. Doe, 457 U.S. 202, 219-30 (1982), are

4 bearing witness to the on-going and irreparable harm the Executive Order is causing.

5

REASONS WHY THE MOTION SHOULD BE GRANTED

6

District courts have “broad discretion” to appoint amicus curiae. Hoptowit v. Ray, 682 F. 2d

7 1237, 1260 (9th Cir. 1982). “District courts frequently welcome amicus briefs from non-parties

8 concerning legal issues that have potential ramifications beyond the parties directly involved or if

9 the amicus has ‘unique information or perspective that can help the court beyond the help that the

10 lawyers for the parties are able to provide.’” NGV Gaming, Ltd. V. Upstream Point Molate, LLC,

11 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246 F. Supp. 2d 59, 62

12 (D.D.C.2003)). If permitted to file, the Educational Amici will fulfill “the classic role of amicus

13 curiae by assisting in a case of general public interest[] [and] supplementing the efforts of

14 counsel[.]” Miller-Wohl Co. v. Comm'r of Labor & Indus. State of Mont., 694 F.2d 203, 204 (9th

15 Cir. 1982).

16

The Court should exercise its discretion to permit the Educational Amici to file the attached

17 amicus brief. Counsel for the Educational Amici is familiar with the scope of the arguments

18 presented by the parties and will not unduly repeat those arguments. Educational Amici will draw

19 upon their knowledge of the educational system and their experience in school communities to

20 demonstrate the on-going and irreparable harm the Executive Order is causing and will continue to

21 cause unless enjoined by the Court.

22 CONCLUSION
23 For these reasons, the Educational Amici respectfully request that the Court grant it leave to
24 file the amicus brief attached as Exhibit A.
25

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MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Case 3:17-cv-00485-WHO Document 58 Filed 03/29/17 Page 4 of 5

1 Dated: March 29, 2017 2 3 4 5 6

Respectfully submitted, ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ Darren S. Teshima DARREN S. TESHIMA
Attorneys for Amici Curiae Public Schools, Public School Districts,
and Associations of Educators

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Case 3:17-cv-00485-WHO Document 58 Filed 03/29/17 Page 5 of 5

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CERTIFICATE OF SERVICE

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I, Darren S. Teshima, hereby certify that on the 29th day of March, 2017, I caused the foregoing

3 document to be electronically transmitted to the Clerk of the Court using the ECF System for filing

4 and transmittal of a Notice of Electronic Filing to any ECF registrants for this case.

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/s/ Darren S. Teshima

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DARREN S. TESHIMA

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MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 1 of 17
EXHIBIT A

Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 2 of 17

1 DARREN S. TESHIMA (SBN 238875)

dteshima@orrick.com 2 JAZMIN HOLMES (SBN 295312)

3

jholmes@orrick.com DANIEL S. GUERRA (SBN 267559)

4 dguerra@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP
5 The Orrick Building

405 Howard Street 6 San Francisco, CA 94105-2669

7 Telephone: (415) 773-5700 Facsimile: (415) 773-5759

8 Attorneys for Amici Curiae
9 Public Schools, Public School

Districts, and Associations of Educators 10

11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 SAN FRANCISCO DIVISION
14

15 CITY AND COUNTY OF SAN FRANCISCO,

16 Plaintiff,

17

vs.

18 DONALD J. TRUMP, President of the United

19

States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States

20 Department Homeland Security, JEFFERSON B. SESSIONS, Attorney General of the United

21 States, DOES 1-100 et al.,

Case No. 3:17-cv-00485-WHO
[PROPOSED] BRIEF OF AMICI CURIAE PUBLIC SCHOOLS, SCHOOL DISTRICTS, AND ASSOCIATIONS OF EDUCATORS

22

Defendants.

23

24

25

26

27

28

Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 3 of 17

1 2 3
I. 4
II. 5 III. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 IV. 23 24 25 26 27 28

TABLE OF CONTENTS

Page

INTRODUCTION .............................................................................................................. 1
INTEREST OF AMICI CURIAE ....................................................................................... 3
ARGUMENT ...................................................................................................................... 4
A. The Perception That the Executive Order Requires School Districts to Assist in Enforcing Federal Immigration Law Irreparably Harms Students Mentally and Emotionally....................................................................................... 4
1. The Executive Order Has Caused Student Attendance and Community Participation to Drop............................................................... 4
2. The Executive Order Destroys Inclusive Classroom Environments, Replacing Them with Racial Divides and Animus ..................................... 6
3. The Executive Order Impedes Schools’ Ability to Effectively Educate the Entire Student Body ................................................................ 7
a. Research shows that a lack of cohesion and acceptance in school has a measurable negative impact on educational outcomes ......................................................................................... 7
b. School districts must redirect limited resources to combat negative educational environments ................................................. 8
B. The Executive Order Irreparably Harms Students by Jeopardizing the School District Funding Necessary for Essential Services upon Which They Rely ................................................................................................................ 9
1. The Executive Order’s Atmosphere of Fear Reduces Student Attendance, Thereby Harming School District Funding ............................ 9
2. School Districts Rely Upon Federal Funding for Essential Programming and Basic Needs ................................................................. 10
C. The Public Interest Favors Issuing a Nationwide Preliminary Injunction Against the Executive Order’s Implementation and Enforcement ....................... 12
CONCLUSION ................................................................................................................. 12

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Belanger v. Madera Unified Sch. Dist.,

963 F.2d 248 (9th Cir. 1992).......................................................................................................4

5

Brown v. Bd. of Educ.,

6

347 U.S. 483 (1954) ....................................................................................................................1

7 Grutter v. Bollinger,

8

539 U.S. 306 (2003) ....................................................................................................................6

9 Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 (9th Cir. 1998).....................................................................................................8

10 Plyler v. Doe,

11

457 U.S. 202 (1982) ................................................................................................................1, 5

12 Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights &

13

Fight for Equal. By Any Means Necessary (BAMN), 134 S. Ct. 1623 (2014) ............................7

14 Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000).......................................................................................................8
15

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26

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1

Together, the below public school districts, public schools, and associations of educators1

2 respectfully submit this amicus curiae brief in support of Plaintiff City and County of San

3 Francisco’s Motion for a Preliminary Injunction seeking a nationwide injunction against the

4 enforcement of Section 9 of the Executive Order entitled, “Enhancing Public Safety in the Interior

5 of the United States.”2

6 I. INTRODUCTION

7

Children are the bedrock of our nation’s future; their education is the foundation of our

8 democracy. Education is so “fundamental . . . in maintaining the fabric of our society” that over

9 thirty years ago, the Supreme Court recognized that all children are entitled to equal access to a

10 public education, regardless of immigration status. Plyler v. Doe, 457 U.S. 202, 219-30 (1982).

11 Indeed, education “is the very foundation of good citizenship.” Brown v. Bd. of Educ., 347 U.S.

12 483, 493 (1954). In these days, it is doubtful that any child may reasonably be expected to

13 succeed in life if he is denied the opportunity of an education.” Id.

14

Yet on January 25, 2017, President Donald J. Trump issued an Executive Order entitled

15 “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”) that

16 imminently threatens to destroy the ability of our public schools to protect, foster, and educate our

17 children. Specifically, Section 9 of the Executive Order purports to grant the Attorney General

18 (the “AG”) and the Secretary of Homeland Security (the “Secretary”) the authority to unilaterally

19 deny federal funds that support critically-needed basic services from any jurisdiction they deem to

20 be a “sanctuary jurisdiction.” Exec. Order 13768, 82 Fed. Reg. 8799 § 9(a) (Jan. 25, 2017).

21 Alarmingly, the Executive Order contains no clear definition of “sanctuary jurisdiction,” instead

22 broadly threatening any “State, or a political subdivision of a State.” Id. Further, Section 9

23

24 1 Although all amici to this brief are experiencing many of the harms detailed here, any given amici

may not experience all of the harms discussed below. 25 2 Public schools, school districts, and associations of educators recently submitted a substantially

26

similar amicus curiae brief in support of the County of Santa Clara’s motion for a preliminary injunction in the related case County of Santa Clara v. Trump, Case No. 17-574-WHO (N.D. Cal.).

27 There are fewer amici to this brief in part due to the timing of the preliminary injunction motion in this case and the limited occurrence of district board meetings at which districts can approve

28 participation as amici.

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 6 of 17

1 charges the AG with taking “appropriate enforcement action against any entity” that he

2 determines has “a statute, policy, or practice” that “prevents or hinders” the enforcement of

3 federal law. Id.

4

The Executive Order transforms schools from inclusive, safe spaces to places of fear and

5 uncertainty, ultimately undermining our entire public education system. By expansively targeting

6 any “State” or “political subdivision of a State,” the Executive Order is causing sweeping,

7 profound, and irreparable harm to our children and their families, our public education system,

8 and ultimately, the future of our country. Section 9’s ambiguity, coupled with its grant of

9 unbridled discretion to the AG and the Secretary to classify “sanctuary jurisdictions,” creates a

10 level of unpredictability that prevents school districts from properly functioning and providing

11 essential services to students. See Decl. of Ralph G. Porras (“Porras Decl.”) ¶ 11. Without the

12 security of knowing whether they will be targeted at school because of their or their families’

13 actual or perceived immigration status, students are increasingly fearful to attend school, and

14 family members are increasingly reluctant to engage with school staff. Id. ¶ 10; Decl. of Erika

15 Torres (“Torres Decl.”) ¶¶ 3-8; Decl. of Sonia Picos (“Picos Decl.”) ¶¶ 7, 13, 15. The serious

16 threat that schools will be compelled to disclose the immigration status of their students and

17 families drives a wedge between students in the classroom and members of the broader school

18 communities, directly impeding teachers’ ability to educate their students. Torres Decl. ¶¶ 4, 10;

19 Picos Decl. ¶¶ 7, 15. This causes students intense and irreversible mental harm. After the

20 enactment of the Executive Order, a father was detained immediately after dropping his daughter

21 off at school, sending waves of fear through school communities. See Decl. of Ricardo Mireles

22 (“Mireles Decl.”) ¶¶ 6-7, 9-10; Jennifer Medina, Deportation Arrest Highlights Tensions in Los

23 Angeles on Immigration, THE NEW YORK TIMES, March 4, 2017, at A17 (“L.A. Deportation

24 Arrest”).3

25

Furthermore, the Executive Order’s ambiguity deprives school districts of the stability and

26 predictability they need to budget for students’ needs. Public schools risk the loss of significant,

27

28 3 https://www.nytimes.com/2017/03/04/us/los-angeles-deportation-immigration.html.

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 7 of 17

1 indispensable federal funds if they are declared sanctuary jurisdictions or find themselves located

2 in a state, county, or city that is deemed a sanctuary jurisdiction. In the face of this uncertainty, it

3 is our children that continue to suffer the greatest consequences.

4

In light of the profound, irreversible harm that the Executive Order is already causing our

5 students, our communities, and our nation’s future, the amici curiae public schools, school

6 districts, and associations of educators respectfully urge the Court to enjoin the Executive Order’s

7 implementation and enforcement nationwide.

8 II. INTEREST OF AMICI CURIAE

9

Amici curiae are 12 California public schools, eight California public school districts, one

10 superintendent, and five California associations representing 442,791 teachers, 19,539

11 administrators, and elected school officials, who actively participate in national counterparts to

12 these school and educational organizations. Amici schools and districts enroll approximately

13 284,234 K-12 California students and 179,959 adult and college students. A significant number

14 of those students are directly impacted by the Executive Order’s emphasis on punishing

15 jurisdictions the Trump Administration deems too protective of people with irregular immigration

16 status. Up to 1 in 30 students in California public schools is undocumented. UNDOCUMENTED, 17 ED 100.4 Furthermore, in 2014, approximately 3.9 million K-12 students nationally, or 7.3%, had

18 at least one undocumented parent. Jeffrey S. Passel and D’Vera Cohn, Children of Unauthorized

19 Immigrants Represent Rising Share of K-12 Students, PEW RESEARCH CENTER (Nov. 17, 2016)

20 (“Pew: Rising Share of K-12”).5 This number was even higher in California, which reported that

21 12.3% of its K-12 students had at least one undocumented parent in 2014. U.S. Unauthorized

22 Immigration Population Estimates, PEW RESEARCH CENTER (Nov. 3, 2016).6 Nationwide, there

23 were 3.2 million K-12 U.S. citizen students who had at least one undocumented parent or

24 guardian. See Pew: Rising Share of K-12.7

25

26 4 https://ed100.org/lessons/undocumented (last visited Mar. 17, 2017). 27 5 http://pewrsr.ch/2g1q6kg.
6 http://www.pewhispanic.org/interactives/unauthorized-immigrants/. 28 7 This data was obtained from American Community Survey Data, not school districts.

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 8 of 17

1

Entrusted with the safety and well-being of our children, in the wake of the Executive

2 Order, the amici face questions and concerns from students and their families about whether

3 schools will disclose their immigration statuses or other sensitive information to federal

4 immigration authorities. All students enrolled in public schools across the country—regardless

5 of their immigration status—face imminent, irreparable harm unless the Court enjoins the

6 Executive Order’s implementation and enforcement. Moreover, the Executive Order’s ambiguity

7 and unreasonably broad language are exposing public school districts themselves to financial

8 risks outside of their control, creating severe financial consequences that will further harm our

9 children.

10 III. 11 12 13 14

ARGUMENT
A. The Perception That the Executive Order Requires School Districts to Assist in Enforcing Federal Immigration Law Irreparably Harms Students Mentally and Emotionally.
1. The Executive Order Has Caused Student Attendance and Community Participation to Drop.
Following the President’s issuance of the Executive Order, student attendance has

15 dropped due to the perception that federal immigration agents will target schools for enforcement

16 actions. Porras Decl. ¶ 10; Torres Decl. ¶¶ 4-5, 7-8; Picos Decl. ¶ 7. Parent engagement in some

17 schools has also declined because parents fear that their presence at school events could increase

18 the likelihood of their own or their loved ones’ deportation. Torres Decl. ¶¶ 5-7; Picos Decl.

19 ¶ 13; Mireles Decl. ¶ 10.

20

This apprehension has been caused by the Executive Order’s broad objective to “ensure,

21 to the fullest extent of the law, that a State, or a political subdivision of a State” comply with

22 federal immigration law. § 9. Because school districts are arms of the state, Belanger v. Madera

23 Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992), students and their families worry that

24 school administrators or security personnel may be forced to disclose sensitive student

25 information to immigration officials or permit their entry into schools. Torres Decl. ¶¶ 4-5; Picos

26 Decl. ¶¶ 7, 15. This fear is particularly acute at large school districts that employ their own police

27 officers, who some worry may be required to conduct immigration enforcement actions to avoid

28

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 9 of 17

1 losing essential federal funds. See Porras Decl. ¶¶ 4-7. A strong relationship with community

2 members built on trust is central to day-to-day safety in these schools, and fracturing of these

3 relationships would be disastrous for the educational process. Id. ¶ 7; Mireles Decl. ¶ 8. Even if

4 schools choose to risk the loss of federal funds by affirmatively declaring themselves safe havens,

5 students and parents fear that participation in school activities could expose them to federal

6 immigration agents. See id. ¶¶ 4-6; Torres Decl. ¶ 8; Picos Decl. ¶ 15; Mireles Decl. ¶¶ 10-11.

7

These fears are real, not speculative. Since the Executive Order, there have been

8 numerous reports of students and parents being detained, sometimes in close proximity to

9 schools. For example, Romulo Avelica-Gonzalez was detained by ICE officials earlier this month

10 shortly after dropping off his youngest daughter at school. Mireles Decl. ¶ 6; L.A. Deportation

11 Arrest. Not only was Mr. Avelica’s family suddenly ripped apart despite Mr. Avelica posing no

12 threat to the surrounding community, but his thirteen-year-old daughter, Fatima, was still in the

13 car when ICE took him into custody. Id. Research shows that young children like Fatima whose

14 parents have been detained or deported often experience withdrawal, disrupted eating and

15 sleeping patterns, anger, anxiety, and depression. See Undocumented Youth, AMERICAN

16 PSYCHOLOGICAL ASSOCIATION.8 More long term, these children are at risk for more severe

17 issues, such as post-traumatic stress disorder, poor identity formation, distrust of authorities,

18 acting out, and difficulty with school. Id.

19

Reports of traumatic experiences like that of Fatima’s family have sent chills through

20 school communities. Mireles Decl. ¶¶ 7-9. Although ICE policy prohibits enforcement actions in

21 and around schools unless exigent circumstances exist, an exception applies, or prior approval is

22 obtained, see ICE, ENFORCEMENT ACTIONS AT OR FOCUSED ON SENSITIVE LOCATIONS (Oct. 24,

23 2011),9 ICE maintains that Mr. Avelica’s arrest was proper because he was half a mile away from

24 the school. L.A. Deportation Arrest. Understandably, students and their families are fearful that

25 even if ICE respects its own policies, Fatima’s story demonstrates that in the wake of the

26

27 8 http://www.apa.org/topics/immigration/undocumented-video.aspx (last visited Mar. 16, 2017).
28 9 https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf.

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 10 of 17

1 Executive Order, those policies are insufficient to protect young students simply seeking their

2 constitutional right to an equal education. See Plyler, 457 U.S. at 219-30. Indeed, since the

3 Executive Order, schools report an uptick in unverified community rumors regarding the presence

4 of ICE officials in and around schools. Torres Decl. ¶ 5; Mireles Decl. ¶ 5.

5

When student attendance and parent participation in school communities decline, the

6 entire student body suffers. Picos Decl. ¶ 9; Porras Decl. ¶ 8; Mireles Decl. ¶ 10. Students and

7 family members with irregular immigration status live in a state of terror that immigration agents

8 might meet them at the schoolhouse door. Porras Decl. ¶ 8; Torres Decl. ¶¶ 4-8; Mireles Decl. ¶¶

9 5, 7, 9-10. Many students fear for their classmates, worrying about how to protect them in the

10 face of threatened enforcement action. See Porras Decl. ¶ 8; Pico Decl. ¶ 12. Schools lose voices

11 that contribute to the vibrancy and diversity of their classrooms, and dedicated parent volunteers

12 who provide essential support to students across California. See Porras Decl. ¶¶ 8, 10; Picos

13 Decl. ¶ 9.

2. The Executive Order Destroys Inclusive Classroom Environments,

14

Replacing Them with Racial Divides and Animus.

15

The Executive Order (particularly when coupled with the President’s other immigration

16 policies) teaches our students to shun immigrant members of our communities rather than value

17 diversity—a central tenet of education in the United States. See Grutter v. Bollinger, 539 U.S.

18 306, 332 (2003) (recognizing that “[e]ffective participation by members of all racial and ethnic

19 groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be

20 realized.”). Consequently, the Executive Order undermines the efforts of schools to teach and

21 model that classrooms are meant to be safe spaces for all children to learn and grow, without

22 regard to race or ethnicity. See Porras Decl. ¶ 9; Picos Decl. ¶¶ 6, 15.

23

The presidential policies underlying the Executive Order are now undermining years of

24 work that schools have invested to combat bullying amongst students. MAUREEN B. COSTELLO, 25 TEACHING THE 2016 ELECTION, THE TRUMP EFFECT 10-11 (2016)10; see Picos Decl. ¶ 15. In

26 recent months, there has been a significant increase in reported cases of hateful harassment, with

27

28 10 https://www.splcenter.org/sites/default/files/splc_the_trump_effect.pdf.

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 11 of 17

1 nearly 40% of all incidents occurring in an educational setting and the highest number of

2 incidents occurring in K-12 schools. S. Poverty Law Ctr. Hatewatch, Update: Incidents of

3 Hateful Harassment Since Election Day Now Number 701, SPLCENTER (Nov. 18, 2016)11; see

4 also Porras Decl. ¶ 9; Picos Decl. ¶ 6. Although anti-immigrant incidents constitute the most

5 common form of reported harassment, these incidents are not limited to immigrant students and

6 their families. COSTELLO at 7. Children increasingly feel emboldened to use hateful language

7 against those who appear different from themselves. Id. at 10-11; Picos Decl. ¶ 15. Indeed,

8 students of diverse backgrounds express daily fears about being deported, being sent to detention

9 camps, losing their homes, or being attacked by police, solely due to their actual or perceived

10 identities. COSTELLO at 10-11. These incidents of hate are particularly traumatizing for students

11 who have come to the United States seeking asylum or refuge from persecution in other countries.

12 Id. at 8.

13

The irreparable mental and emotional damage the Executive Order has already caused by

14 destroying the safe haven that classrooms traditionally have provided cannot be underestimated.

15 See Porras Decl. ¶ 8; Picos Decl. ¶ 6.

16

3. The Executive Order Impedes Schools’ Ability to Effectively Educate

the Entire Student Body. 17

18

The Executive Order’s harm is not limited to individual students’ mental and emotional

19 damage. The racial animus and divisiveness caused by the Executive Order impair educational

20 outcomes and force schools to redirect limited funds toward mitigating racial and ethnic hostility.

21 Picos Decl. ¶ 15. As noted by Justice Sotomayor, “I do not belong here” is indeed “the most

22 crippling of thoughts.” Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant

23 Rights & Fight for Equal. By Any Means Necessary (BAMN), 134 S. Ct. 1623, 1676 (2014)

24 (Sotomayor, J., dissenting).

25

26

27 11 https://www.splcenter.org/hatewatch/2016/11/18/update-incidents-hateful-harassment-election-
28 day-now-number-701.

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 12 of 17

a. Research shows that a lack of cohesion and acceptance in school

1

has a measurable negative impact on educational outcomes.

2

A positive school environment is essential to promote positive academic outcomes.

3 Research shows a direct correlation between a positive school climate and increased short-term

4 and long-term academic achievement. Amrit Thapa, et al., A Review of School Climate

5 Research, 83 REV. OF EDUC. RES. 357, 365 (2013).12 Similarly, a sense of belonging in the

6 classroom positively predicts end of semester grades, increases motivation, and promotes

7 academic engagement. RW Roeser, et al., Perceptions of the School Psychological Environment

8 and Early Adolescents’ Psychological and Behavioral Functioning in School, J. EDUC. PSYCHOL.

9 88, 408-22 (1996); C Goodenow C & KE Grady, The Relationship of School Belonging and

10 Friends’ Values to Academic Motivation Among Urban Adolescent Children, J. EXP. EDUC. 62,

11 60-71 (1993).

12

In contrast, a negative school environment precludes educators from fostering the civil

13 discourse necessary for an enriching educational process. See Picos Decl. ¶ 15. When students

14 feel excluded, anger, hostility, and physical altercations replace the civil debates that classrooms

15 traditionally promote. See COSTELLO at 11. Consequently, students experience increased anxiety

16 for themselves and their fellow classmates, impacting their ability to concentrate. Id. at 7, 9;

17 Porras Decl. ¶ 8; Picos Decl. ¶ 13.

18

b. School districts must redirect limited resources to combat

negative educational environments. 19

20

In response to increased bullying and racial animus, school districts are legally required to

21 take reasonable actions to stop harassing behavior. Vance v. Spencer Cnty. Pub. Sch. Dist., 231

22 F.3d 253, 261 (6th Cir. 2000); Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034

23 (9th Cir. 1998) (holding that “a school district ‘has a legal duty to take reasonable steps to

24 eliminate’ a racially hostile environment”). Accordingly, some public schools and school

25 districts are being forced to redirect valuable time and finite resources to resisting the hate and

26

27 12 http://k12engagement.unl.edu/REVIEW%20OF%20EDUCATIONAL%20RESEARCH-2013-
28 Thapa-357-85.pdf.

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1 divisiveness promoted by the Executive Order. Picos Decl. ¶ 15. In an environment where time

2 and resources are scarce, these increased obligations are irreparably harming the educational

3 process for all students. Id.

4 B. The Executive Order Irreparably Harms Students by Jeopardizing the School

5

District Funding Necessary for Essential Services upon Which They Rely.

6

1. The Executive Order’s Atmosphere of Fear Reduces Student

Attendance, Thereby Harming School District Funding.

7

8

California funds most school districts through grants based on average daily student

9 attendance. LCFF Frequently Asked Questions, Cal. Dep’t. of Educ.13 Consequently, decreases

10 in student attendance levels have a profound negative effect on the state funds those schools

11 receive. Porras Decl. ¶ 10; Picos Decl. ¶ 10. During the 2009-2010 school year, San Diego

12 County public schools lost over $102 million in state funding due to student absences. Joanne 13 Faryon, Chronically Absent Students Cost County Schools Millions, KPBS (June 27, 2011).14

14 Reports estimate that “[o]ver the past six years, school districts in California have lost an

15 estimated $7.3 billion in funding due to student absences. An estimated $1.52 billion dollars was

16 left unclaimed by school districts in the 2015-2016 school year alone.” In School + On Track:

17 Attorney General’s 2016 Report on California’s Elementary School Truancy & Absenteeism 18 Crisis, Cal. Dep’t. of Just.15

19

As discussed in Section III.A.1 supra, the Executive Order and the President’s related

20 immigration policies have created tremendous uncertainty in immigrant communities, causing

21 parents to keep their children at home for fear that immigration agents may raid public schools.

22 Porras Decl. ¶ 10; Torres Decl. ¶¶ 4-8; Picos Decl. ¶ 8. This fear deprives children of their

23 constitutional right to an education and reduces state funding schools need for basic operations.

24 Reduced funding impacts all students, regardless of immigration status, and has long-term

25
26 13 http://www.cde.ca.gov/fg/aa/lc/lcfffaq.asp#FC (last visited Mar. 15, 2017). 14 http://www.kpbs.org/news/2011/jun/27/chronically-absent-students-cost-county-schools-mi/.
27 15 https://oag.ca.gov/truancy/2016 (last visited Mar. 20, 2017).

28

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 14 of 17

1 consequences for communities, the state, and the economy. See In School + On Track: Attorney

2 General’s 2013 Report on California’s Elementary School Truancy & Absenteeism Crisis, Cal.

3 Dep’t. of Just.16 (truant elementary school students more likely to become dropouts who annually

4 cost California billions in “criminal justice costs, social and medical costs, lost income taxes and

5 associated economic losses”); Picos Decl. ¶¶ 16-17.

6

2. School Districts Rely Upon Federal Funding for Essential

Programming and Basic Needs. 7

8

Section 9 fails to provide notice as to what criteria will be used by the Secretary and the

9 AG to make “sanctuary jurisdiction” determinations. The breadth of the Executive Order

10 compounds this uncertainty by failing to identify the limits of enforcement to be leveled against

11 sanctuary jurisdictions or to provide a review process. Some school districts believe they cannot

12 guarantee that they will not be deemed sanctuary jurisdictions and, even if they could, they cannot

13 predict any potential financial consequences of being located in a state, county, or city that is

14 deemed a sanctuary jurisdiction. Rory Carroll, Robin Respaut & Andy Sullivan, Top 10 U.S.

15 sanctuary cities face roughly $2.27 billion in cuts by Trump policy, REUTERS (Jan. 26, 2017)17

16 (noting that a city’s designation as a “sanctuary” may risk loss of federal funding for public

17 education programs). Loss of federal funding in either scenario would have severe impacts on

18 school budgets and essential programs students rely upon. Porras Decl. ¶ 11; Picos Decl. ¶¶ 10,

19 16; Mireles Decl. ¶ 12.

20

The federal government provides funding for various programs that are essential to

21 fostering healthy students and academic success. Torres Decl. ¶ 9; Porras Decl. ¶ 11; Picos Decl.

22 ¶¶ 5, 10, 16; Mireles Decl. ¶ 12. Many schools fear that the Executive Order critically threatens

23 the viability of these key programs, upon which our most vulnerable students depend. Id.

24

Under Title I of the Elementary and Secondary Education Act, schools with high

25

26 16 https://oag.ca.gov/truancy/2013 (last visited Mar. 15, 2017).
27 17 http://www.reuters.com/article/us-usa-trump-sanctuarycities-idUSKBN1592V9.

28

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 15 of 17

1 populations of low-income students receive additional federal funding to help “ensure that all

2 children meet challenging state academic standards” in core subject areas. Improving Basic

3 Programs Operated by Local Educational Agencies (Title I, Part A), U.S. Dep’t of Educ.18

4 During the 2009-2010 school year, 56,000 public schools nationally received Title I funds to

5 support “extra instruction in reading and mathematics, as well as special preschool, after-school,

6 and summer programs to extend and reinforce the regular school curriculum.” Id. The Executive

7 Order’s ambiguity threatens this crucial Title I funding necessary to ensure the academic success

8 of economically disadvantaged students. Porras Decl. ¶ 11; Mireles Decl. ¶ 12.

9

Additionally, many public schools provide free or reduced-cost meals to low-income

10 students and receive reimbursement from the federal government. Torres Decl. ¶ 9; Picos Decl.

11 ¶¶ 5, 11; Mireles Decl. ¶ 12. For many low-income students, these free or discounted meals are

12 the only meals they know they can depend upon each day. Picos Decl. ¶ 11. The United States

13 Department of Agriculture’s preliminary data for Fiscal Year 2016 shows that schools served

14 breakfast to 8.9 million students daily, including 6.52 million free breakfasts and 800,000

15 reduced-price breakfasts. School Breakfast Program Participation and Meals Served.19

16 Preliminary data also shows that schools served 30.4 million lunches daily, including 20.1 million

17 free lunches and 2 million reduced-price lunches. NATIONAL SCHOOL LUNCH PROGRAM:

18 PARTICIPATION AND LUNCHES SERVED.20 These meals are essential to combating hunger,

19 promoting student wellness, and fostering an environment where students can thrive and learn.

20 Torres Decl. ¶ 9; Picos Decl. ¶ 11.

21

The Executive Order’s threat to public schools’ federal funding jeopardizes these essential

22 programs for all students, regardless of immigration status. Porras Decl. ¶ 11; Picos Decl. ¶ 16.

23 The uncertainty under the Executive Order places public schools in an unconscionable

24 dilemma—they can either stop providing essential nutrition and support services to their students

25 or risk a significant budgeting shortfall.

26
27 18 https://www2.ed.gov/programs/titleiparta/index.html?exp=0 (last visited Mar. 15, 2017). 19 https://www.fns.usda.gov/sites/default/files/pd/sbsummar.pdf (last visited Mar. 15, 2017).
28 20 https://www.fns.usda.gov/sites/default/files/pd/slsummar.pdf (last visited Mar. 15, 2017).

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 16 of 17

1

The Executive Order’s ambiguity poses particular challenges for California public

2 schools. Under California’s 2014 Local Control Funding Formula (“LCFF”), school districts are

3 legally required to develop Local Control & Accountability Plans (“LCAPs”) in consultation with

4 parents, educators, employees and their unions, and the larger community as part of their

5 budgeting processes. LCFF Frequently Asked Questions. LCAPs cover three-year periods and

6 must explain how district budgets meet annual goals for student achievement. Id. Because the

7 Executive Order threatens significant federal funds for LCAPs that must be approved three years

8 in advance, it creates a level of uncertainty that makes the LCFF community consultation process

9 untenable. See Picos Decl. ¶ 14.

10

C. The Public Interest Favors Issuing a Nationwide Preliminary Injunction

Against the Executive Order’s Implementation and Enforcement. 11

12

There is a significant public interest in ensuring that public school districts remain

13 inclusive, welcoming environments that promote all students’ well-being and academic success.

14 There is an equally significant public interest in providing school districts with the financial

15 predictability needed to provide children with essential programs they depend upon to access

16 equal educational opportunities. These concrete, paramount interests vastly outweigh the

17 government’s amorphous assertion of “supporting the enforcement of federal immigration law.”

18 See Dkt. No. 35 at 21.

19 IV. CONCLUSION

20

For the reasons above, the amici respectfully request that the Court issue a nationwide

21 preliminary injunction against the Executive Order. Absent a preliminary injunction, students,

22 their families, and entire school communities will continue experiencing immediate, irreparable

23 harm as a direct result of the uncertainty and fear caused by the Executive Order. Students will

24 experience increased emotional damage, and poor academic outcomes. School districts will be

25 unable to plan for upcoming school years in compliance with local law and ensure that students

26 continue receiving essential services.

27

28

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Case 3:17-cv-00485-WHO Document 58-1 Filed 03/29/17 Page 17 of 17

1 Dated: March 29, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ Darren S. Teshima DARREN S. TESHIMA Attorneys for Academia Avance Charter ACSA (Association of California School Administrators) Alta Public Schools Aspire Public Schools Benjamin H. Picard, Ed.D. (Superintendent of Schools, Sunnyvale School District) Berryessa Union School District Camino Nuevo Charter Academy CCSA (California Charter Schools Association) CFT (California Federation of Teachers) CLSBA (California Latino School Boards Association) CTA (California Teachers Association) GALS LA (Girls Athletic Leadership School - Los Angeles) Green Dot Public Schools KIPP Bay Area Schools Palomar College Sacramento City Unified School District San Diego Community College District San Diego Unified School District San Francisco Unified School District Santa Clara Unified School District Semillas Community Schools Southwestern College Sunnyvale School District Sunrise Middle School Sweetwater Union High School District Wiseburn Unified School District
- 13 -

Case 3:17-cv-00485-WHO Document 58-2 Filed 03/29/17 Page 1 of 4

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9 CITY AND COUNTY OF SAN FRANCISCO,
10 Plaintiff,
11 vs.
12 DONALD J. TRUMP, President of the United
13 States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States
14 Department Homeland Security, JEFFERSON
B. SESSIONS, Attorney General of the United 15 States, DOES 1-100 et al.,

16

Defendants.

17

Case No. 3:17-cv-00485-WHO
DECLARATION OF RALPH G. PORRAS IN SUPPORT OF AMICI CURIAE OF PUBLIC SCHOOLS, SCHOOL DISTRICTS AND EDUCATORS

18 I, Ralph G. Porras, declare as follows based on my personal knowledge:

19

1.

I currently serve as the President of the Association of California School

20 Administrators (ACSA), and I am also the Superintendent of the Pacific Grove Unified School

21 District. I have worked as an administrator and bilingual teacher in the public school system for 26

22 years.

23

2.

ACSA advocates on behalf of its more than 18,000 members and, more importantly,

24 on behalf of the roughly six million California public school children they serve. ACSA has

25 consistently supported policies that provide a safe, inclusive and diverse learning environment for

26 all school-aged children in California.

27

28 - 1 -

Case 3:17-cv-00485-WHO Document 58-2 Filed 03/29/17 Page 2 of 4

1

3. In my position as President of ACSA, I have had the opportunity to discuss the

2 impact of President Trump’s January 25, 2017 Executive Order regarding sanctuary jurisdictions

3 with educators, and many others in the school community, throughout the state. I am also familiar

4 with the federal funds that California school districts receive, and how those funds are used to

5 provide programs and services for students. Moreover, as Superintendent of Pacific Grove USD, I

6 am directly responsible for creating an optimal learning environment for our K-12 students, as well

7 as for Transitional Kindergartens and Adult Education students.

8

4. Many schools and school districts throughout the state have adopted policies or

9 resolutions clarifying that schools are “safe zones” or “safe havens” where all students and their

10 families are welcome. Most of these policies and resolutions were adopted long before the most

11 recent Presidential election. While these policies and resolutions vary to some degree, they are

12 primarily motivated by a desire to build trust among students and the schools that serve them, and to

13 make it clear that school officials play no role in determining the legal status of students or their

14 families with respect to federal immigration laws. To be clear, these policies and resolutions are not

15 focused on promoting a specific agenda with respect to immigration law, but instead simply assure

16 students and their families that coming to school does not expose them to federal enforcement

17 action.

18

5. The Executive Order does not clearly indicate whether schools and school districts

19 with safe zone or safe haven policies and resolutions will be identified as “sanctuary jurisdictions”

20 and subject to unspecified enforcement action and the loss of federal funds. Having spoken with

21 members of the school community throughout the state, however, I know that in many places the

22 Executive Order has created uncertainty and fear among students and families who are no longer

23 sure that schools are safe places.

24

6. School officials are concerned that the Executive Order will force them to choose

25 between rescinding their safe zone or safe haven resolution and policies or risking the loss of

26 critically needed federal funds. These same educators are already seeing an erosion of the trust and

27 faith in the system that they have built with their communities over many years, and know that if

28 - 2 -

Case 3:17-cv-00485-WHO Document 58-2 Filed 03/29/17 Page 3 of 4

1 they rescind their policies to avoid federal sanctions they will cause irreparable damage to the

2 relationship between schools and the most vulnerable students they serve.

3

7. Larger school districts with their own police officers, and the many other districts

4 that work closely and cooperatively with their local police departments, have worked very hard over

5 the last couple of decades to create opportunities for trust and collaboration among the police,

6 students, and educators. Particularly for our most at-risk students, building this trust is essential to

7 their safety both within and outside of school. To the extent that the Executive Order undermines

8 this trust and collaboration, it is likely to make both students and police officers less safe.

9

8. It is important to note that all students are negatively impacted when some of them

10 are targeted and threatened with exclusion. Strong educational programs require the support of

11 healthy, vibrant and diverse communities. If some students stop attending or participating,

12 programs become less diverse and students lose valuable opportunities for interaction and

13 enrichment. An optimal educational environment allows students to dialog with each other and

14 share experiences, but this is only possible if students believe that school is a safe place to share

15 those experiences. Educators have told me that many students, particularly in schools that serve

16 large immigrant populations, are starting to withdraw and participate less in school activities. Even

17 students who are secure fear for their classmates, and worry whether they will be protected from

18 enforcement action while in school.

19

9. There are other, more direct, negative impacts on schools caused by the Executive

20 Order and the general environment that informs our students that some of them are not welcome. I

21 have spoken to educators in the Bay Area and rural parts of Northern California that have seen an

22 increase in vandalism directed at certain student populations, hateful speech directed at some

23 students, and even aggressive behavior among students stemming from a more divisive

24 environment.

25

10. Particularly in schools serving largely immigrant populations, educators have told

26 me that absenteeism and truancy have increased over the last couple of months. Drops in school

27 attendance not only impact the funding received by schools, which is based on verified average

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Case 3:17-cv-00485-WHO Document 58-2 Filed 03/29/17 Page 4 of 4

Case 3:17-cv-00485-WHO Document 58-3 Filed 03/29/17 Page 1 of 4

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9 CITY AND COUNTY OF SAN FRANCISCO,
10 Plaintiff,
11 vs.
12 DONALD J. TRUMP, President of the United
13 States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States
14 Department Homeland Security, JEFFERSON
B. SESSIONS, Attorney General of the United 15 States, DOES 1-100 et al.,

16

Defendants.

17

Case No. 3:17-cv-00485-WHO
DECLARATION OF ERIKA TORRES IN SUPPORT OF AMICI CURIAE OF PUBLIC SCHOOLS, SCHOOL DISTRICTS AND EDUCATORS

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF ERIKA TORRES

Case 3:17-cv-00485-WHO Document 58-3 Filed 03/29/17 Page 2 of 4

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Case 3:17-cv-00485-WHO Document 58-4 Filed 03/29/17 Page 1 of 6

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9 CITY AND COUNTY OF SAN FRANCISCO,
10 Plaintiff,
11 vs.
12 DONALD J. TRUMP, President of the United
13 States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States
14 Department Homeland Security, JEFFERSON
B. SESSIONS, Attorney General of the United 15 States, DOES 1-100 et al.,

16

Defendants.

Case No. 3:17-cv-00485-WHO
DECLARATION OF RICARDO MIRELES IN SUPPORT OF AMICI CURIAE OF PUBLIC SCHOOLS, SCHOOL DISTRICTS AND EDUCATORS

17

18 I, Ricardo Mireles, hereby declare:

19

1. I am the Executive Director at Academia Avance and have worked for the charter

20 school for 12 years.

21

2. I have personal knowledge of the matters contained in this declaration and if called

22 to testify to the matters set forth in this declaration, could do so competently. In my position I am

23 responsible for all operations, program and policy matters of the school, including reporting to the

24 governance body, the Avance Executive Board. In this capacity, I am in daily contact with all

25 stakeholders of our school: the students, faculty, staff, parents and staff of our partner organizations.

26 This community collectively approaches 1,000 persons. In this role, I have witnessed the many

27 impacts of the January 25, 2017 Presidential Executive Order entitled, “Enhancing Public Safety

28 in the Interior of the United States” to our stakeholders.

- 1 -

Case 3:17-cv-00485-WHO Document 58-4 Filed 03/29/17 Page 2 of 6

1

3. Academia Avance enrolls just over 400 K-12 California students, and employs 25

2 teachers, and 20 administrators and support staff. This direct personnel work together with about

3 20 additional staff of partner organizations. A significant number of the students are directly

4 impacted by the Executive Order, either because of their immigration status, or that of a sibling, or

5 that of one or both parents. Some of the staff are also impacted due to of the immigration status of

6 members of their families.

7

4. Since President Trump issued the “Interior Security” Executive Order our students

8 and parents have exhibited a noticeable increase in concern regarding the emerging reality of the

9 45th President making real the many racist and hate-promoting statements and promises made as a

10 candidate towards Muslims, immigrants and Mexicans in particular. These student concerns have

11 been expressed to our teachers and staff during the daily House period, in counseling sessions, in

12 our parent meetings, and class discussions. The many hate crimes and harassment of those

13 perceived as immigrant and/or Muslim, correctly or not, as reported in the media, have led to a

14 deepening of the concerns among our students and parents. A recent egregious example of this rise

15 in harassment at schools is the story of the fourth grade robotics team in Indianapolis taunted

16 following their championship win, and told to ‘Go Back to Mexico.’ It has been impossible for our

17 school community to escape awareness of this rising level of hostility.

18

5. The anxiety at Academia Avance heightened starting on February 10th, following

19 the swearing in of Jeff Sessions as Attorney General, and the subsequent “Operation Cross Check”

20 detention of immigrants by federal agents of Department of Homeland Security Immigration and

21 Customs Enforcement (ICE) in many cities, including Los Angeles. Soon after, parents and students

22 daily shared stories of sitings of unmarked vehicles with what was believed to be ICE agents in the 23 neighborhoods of our school. At a meeting with parents on the evening of February 23rd, a parent

24 reported the detention by ICE of a neighbor in her shared apartment building while the neighbor

25 exited her unit to go to the laundry room. She had left her children in the apartment, and dared not

26 inform the ICE agents out of fear they would also take her kids. A second parent described an

27 incident where two young persons were detained by ICE agents, even though one held valid

28 - 2 -

Case 3:17-cv-00485-WHO Document 58-4 Filed 03/29/17 Page 3 of 6

1 Deferred Action for Childhood Arrivals (DACA) status. This anxiety is a major obstacle to our

2 students and parents focusing on their pursuit of their academic goals.

3

6. The anxiety level spiked following the detention the morning of February 28th of

4 Romulo Avelica-Gonzalez. He is a parent of two students in grade 7 and 8 at Academia Avance,

5 and is also the uncle of two other grades 8 and 12 students at our school, and of an alumna now

6 attending UC San Diego, the three whose fathers are in Mexico. The Avelica family has been a

7 member of the Aacdemia Avance community for almost ten years. That morning, Mr. Avelica was

8 taking his two daughters to school, not aware that two unmarked vehicles with ICE agents were

9 following him. At about 7:40am the youngest exited the Avelica’s SUV at the rear drop-off gate

10 for our campus for grade 6-7 located at 2635 Pasadena Av in Northeast Los Angeles. Then, Mr.

11 Avelica traveling with his wife and daughter Fatima, drove around the block to head to her campus

12 at 161 S Avenue 49. On the 3200 block of the same Pasadena Av, approximately 1,690 feet from

13 our charter school campus, but only 830 feet from the Los Angeles Unified School District Hillside

14 Elementary School campus which also abuts Pasadena Av, one of the ICE vehicles sped to the

15 front, the second to the rear of Mr. Avelica SUV to stop him. Wearing jackets emblazoned simply

16 as “POLICE” they detained him, leaving Fatima with her mother in the SUV. Fatima called her

17 two elder adult sisters who left work to assist them. As an indication of how she values her

18 education, Fatima continued to school, arriving just after 8:00am, just in time to join her 8th grade

19 classmate on their field trip to the Musuem of Tolerance. The detention of her father was witnessed

20 by many people, since it happened in plain site of all that drove by during the busy morning

21 commute along a major through fare for a neighborhood with about ten schools within a 1 mile

22 radius of where the detention took place. But far greater that those who saw the incident first-hand,

23 or who heard of it second-hand, was the awareness that spread quickly since the ICE detention was 24 captured on video by Fatima. What was local news on Wednesday, March 1st, became national

25 news the next day, and international news by week’s end. The news articles and comments amassed

26 via social media overwhelming recognize this detention – an ICE action when a parent is taking his

27 kids to school – as being wrong. The public outcry has only increased in the weeks that have

28 followed. - 3 -

Case 3:17-cv-00485-WHO Document 58-4 Filed 03/29/17 Page 4 of 6

1

7. The mental and emotional pressure on the two daughters, and their family, cannot

2 be underestimated, with huge ripple effects to all their classmates and teachers school-wide. Since

3 the detention of Romulo Avelica, the school staff have taken notice of dozens of students requesting

4 permission to call their parents, some requesting multiple time during the school day. The staff are

5 over hearing that most of these calls are to confirm the location of their parents, either at home or

6 work, ie. to establish that they have not been detained. This level of concern among the students is

7 disrupting our learning environment.

8

8. During the Spring parent conferences held the week of March 6th, 2017, a survey

9 was conducted of all parents attending. The parent attendance rate surpassed 90% for all grades 6-

10 12. On a scale of 1 to 5 between a level of no anxiety, to an extremely high level of anxiety and

11 fear of ICE actions impacting their family, only a minority reported levels below 3, ie. there is wide

12 spread and deep fear of ICE action among the Avance community. But there is also a level of trust

13 that the school is not cooperating with ICE action. If the “Interior Security” Executive Order is

14 implemented so as to force our school to cooperate with immigration enforcement actions, this trust

15 would be lost, and the college-going culture we have worked so hard to create over the last twelve

16 years would be irreparably damaged.

17

9. The required response to this detention has forced our school to redirect valuable

18 time and finite resources. Should there be a second detention suffered by an Avance family, the

19 school may be stretched too far. The “Interior Security” Executive Order and the ICE actions that

20 it has initiated have create anxieties within school communities that cannot be soon dimished. In

21 an environment where time and resources are scarce, these increased obligations are irreparably

22 harming the educational process for all students. At a time when we should be narrowly focused

23 on instruction in preparation for the annual student assessments set for late April, we have needed

24 to call for numerous school-wide and campus-wide assemblies to inform our students and staff of

25 the situation with the Avelica family, and how they can prepare for situations directed at them. One

26 emerging concern for the school leadership is how this level of support can be maintained once

27 classes break for the summer.

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Case 3:17-cv-00485-WHO Document 58-4 Filed 03/29/17 Page 5 of 6

1

10. The “Interior Security” Executive Order has created an environment of fear of

2 possible immigration enforcement action on school property or at school events. Since the detention

3 of Romulo Avelica, many of the grade 8-10 students indicated their reluctance to participate in their

4 physical education classes that use the nearby City parks several times a week, for fear of ICE

5 actions. School staff have noticed a significant increase in the number of student walking alone to

6 school, thus no longer dropped off by their parents. This has had a corresponding increase in

7 students arriving tardy - a disruption to their learning. We have noticed a reduction in the

8 participation of students to off-campus activities, and major impact to the extensive experiential

9 learning of our school, which as a college preparatory, thus includes many university campus visits.

10 We have noticed that in the past month, parent attendance for our intramural basketball and soccer

11 games has decline significantly. For our school, student participation in sports has been a major

12 contributor to improved and sustained academic outcomes. A decline in parent support of the

13 athletics activities will diminish these outcomes.

14

11. The uncertainty caused by the how the “Interior Security” Executive Order will

15 impact our school, our students and staff has specifically impacted the Senior Class Kids Bridge

16 experiential learning project that is the capstone to their four year Life Prep curriculum. This May,

17 the Seniors are to present on water quality issues at a conference in Bennington College in Vermont,

18 attend workshops at the John Abbott College in Montreal, Canada, and have an exchange with high

19 school students of the St. Regis Mohawk Nation on the US-Canada border. As this project involves

20 travel outside of the City and County of Los Angeles, and the state, fear of being detained by federal

21 officers under the enforcement priorities of the “Interior Security” Executive Order has caused at

22 least ten students to withdraw from participation. This is a major loss for these students, and for

23 their classmates.

24

12. Loss of federal funding due to the Executive Order would have a devastating impact

25 on the budget of our charter school. In the last fiscal year ending in July 2016, Academia Avance

26 received $407,044 from federal categorical program sources, including Title I to support English

27 Language Learners, Special Education and Child Nutrition funds for lunch service. A reduction or

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Case 3:17-cv-00485-WHO Document 58-4 Filed 03/29/17 Page 6 of 6

1 loss of these federal funds would severely disrupt these critical programs, and lead to student dis-

2 enrollment, which would permanently and irreparably reduce the revenues to the school.

3

I declare under penalty of perjury under the laws of the State of California that the foregoing

4 is true and correct.

5

Executed on March 22, 2017, at Los Angeles, California.

6

7

____________________

8

Ricardo Mireles

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case 3:17-cv-00485-WHO Document 58-5 Filed 03/29/17 Page 1 of 4

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 CITY AND COUNTY OF SAN FRANCISCO,

12

Plaintiff,

13

vs.

DONALD J. TRUMP, President of the United 14 States, UNITED STATES OF AMERICA, JOHN

15 F. KELLY, Secretary of United States Department Homeland Security, JEFFERSON B. SESSIONS,

16 Attorney General of the United States, DOES 1-

100 et al., 17

Defendants.

Case No. 3:17-cv-00485-WHO
DECLARATION OF SONIA PICOS IN SUPPORT OF AMICI CURIAE OF PUBLIC SCHOOLS, SCHOOL DISTRICTS AND EDUCATORS

18

19 I, Sonia Picos, hereby declare:

20

1. I am Director of Student Services at Sweetwater Union High School District.

21

2. I have personal knowledge of the matters contained in this declaration and if called

22 to testify to the matters set forth in this declaration, could do so competently. In my position, I

23 oversee all matters pertaining to students, including attendance, enrollment, health and wellness,

24 safety and security, discipline and truancy, Title IX, and drop-out prevention. Also within our

25 division, matters pertaining to our adult school students and concerns are handled.

26

3. Sweetwater Union High School District is the southernmost Secondary district in

27 California in proximity to the United States-Mexico Border. It is comprised of schools in National

28 City, Chula Vista, Imperial Beach and the City of San Diego. Many of our schools are located

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Case 3:17-cv-00485-WHO Document 58-6 Filed 03/29/17 Page 1 of 2

1 DARREN S. TESHIMA (SBN 238875)

dteshima@orrick.com 2 JAZMIN HOLMES (SBN 295312)

3

jholmes@orrick.com DANIEL S. GUERRA (SBN 267559)

4 dguerra@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP

5 The Orrick Building

405 Howard Street 6 San Francisco, CA 94105-2669

7

Telephone: Facsimile:

(415) 773-5700 (415) 773-5759

8 Attorneys for Amici Curiae
9 Public Schools, Public School
Districts, and Associations of Educators 10

11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 SAN FRANCISCO DIVISION
14

15 CITY AND COUNTY OF SAN FRANCISCO,
16 Plaintiff,
17 vs.
18 DONALD J. TRUMP, President of the United 19 States, UNITED STATES OF AMERICA,
JOHN F. KELLY, Secretary of United States 20 Department Homeland Security, JEFFERSON
B. SESSIONS, Attorney General of the United 21 States, DOES 1-100 et al.,

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Defendants.

Case No. 3:17-cv-00485-WHO
[PROPOSED] ORDER GRANTING PUBLIC SCHOOLS, SCHOOL DISTRICTS AND ASSOCIATIONS OF EDUCATORS’ MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

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[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

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The Public Schools, School Districts, Educational Associations and Individual Educators have

2 moved to appear and file a brief as amici curiae. Having reviewed the proposed brief and considered
3 the motion, this court GRANTS the motion and the proposed amicus curiae brief is deemed filed. 4
IT IS SO ORDERED. 5

6 Dated: ______________ 7 8

Honorable William H. Orrick United States District Judge

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[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

 
 Case 3:17-cv-00485-WHO Document 59 Filed 03/29/17 Page 1 of 5

1 MATTHEW J. PIERS (IL #2206161)

2

CHIRAG G. BADLANI (IL #6308523) CARYN C. LEDERER (IL #6304495)

3 HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000
4 Chicago, IL 60602

5

Telephone: (312) 580-0100 Fax: (312) 604-2623

6 E-mail: mpiers@hsplegal.com

7 Attorneys for Amici Curiae Individual Sheriffs 8 and Police Chiefs

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 10

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) Case No. 3:17-cv-00485-WHO

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)

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) CITY AND COUNTY OF SAN FRANCISCO, ) MOTION FOR LEAVE TO FILE

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Plaintiff,

) AMICI CURIAE BRIEF IN ) SUPPORT OF PLAINTIFF’S

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) MOTION FOR PRELIMINARY

16

v.

) INJUNCTION BY INDIVIDUAL ) SHERIFFS AND POLICE CHIEFS

17 DONALD J. TRUMP, et al.,

) ) Date: April 14, 2017

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) Time: 2:00pm

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Defendants.

) Dep’t: Courtroom 2 ) Judge: Hon. William H. Orrick

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)

) Date Filed: March 29, 2017

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)

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) Trial Date: Not yet set )

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MOT. FOR LEAVE TO FILE AMICI CURIAE BRIEF ISO PLAINTIFF’S MOTION FOR PI BY INDIVIDUAL SHERIFFS AND POLICE CHIEFS Case No. 3:17-cv-00485

Case 3:17-cv-00485-WHO Document 59 Filed 03/29/17 Page 2 of 5

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Pursuant to the Court’s March 21, 2017 Order Regarding Amicus Briefing (Dkt. No. 31),

2 Movants, certain individual Sheriffs and Police Chiefs respectfully request leave to participate as 3
amici curiae and file a brief in support of Plaintiff’s Motion for Preliminary Injunction. The 4 5 proposed brief is submitted with this motion.

6

I. Interest of Proposed Amici

7

Amici are individual police chiefs and sheriffs from cities and counties in eleven states.

8 Amici have extensive expertise in local law enforcement and in cooperative federal-state law 9
enforcement activities. 10

11

The following amici represent some of the more than 400 municipalities and counties that

12 have policies limiting local involvement in federal immigration operations:

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 Chief Art Acevedo, Houston, Texas, Police Department;

14  Chief Charles Beck, Los Angeles, California, Police Department;
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 Chief Chris Burbank (retired), Salt Lake City, Utah, Police Department;

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 Sheriff Jerry Clayton, Washtenaw County, Michigan, Sheriff’s Office;

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 Sheriff Mark Curran, Lake County, Illinois, Sheriff’s Office;

19  Sheriff Tony Estrada, Santa Cruz County, Arizona, Sheriff’s Office;
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 Sheriff Michael Haley (retired), Washoe County, Nevada, Sheriff’s Office;

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 Sheriff Bill McCarthy, Polk County, Iowa, Sheriff’s Office;

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 Sheriff Joe Pelle, Boulder County, Colorado, Sheriff’s Office;

24  Chief Celestino Rivera, Lorain, Ohio, Police Department;
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 Sheriff John Urquhart, King County, Washington, Sheriff’s Office;

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 Sheriff Lupe Valdez, Dallas County, Texas, Sheriff’s Department; and

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MOT. FOR LEAVE TO FILE AMICI CURIAE BRIEF ISO PLAINTIFF’S MOTION FOR PI BY INDIVIDUAL SHERIFFS AND POLICE CHIEFS Case No. 3:17-cv-00485 1

Case 3:17-cv-00485-WHO Document 59 Filed 03/29/17 Page 3 of 5

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 Sheriff Richard Wiles, El Paso County, Texas, Sheriff’s Office.

2

II. Proposed Amici’s Brief is Useful to the Court

3 In their accompanying brief, proposed amici supplement Plaintiff’s Motion for Preliminary
4

5 Injunction by drawing on their knowledge and experiences with local law enforcement practices

6 and effective policing. In particular, proposed amici demonstrate that Executive Order 13768,

7 which seeks to compel local law enforcement to take part in federal immigration enforcement,
8 including by honoring Immigration and Customs Enforcement (“ICE”) civil detainers,1 will 9 10 threaten public safety by undermining community policing efforts, decreasing reporting of crime 11 and cooperation with police by immigrant communities, and forcing reallocation of limited

12 resources from effective public safety efforts. Proposed amici also explain that because federal

13 courts across the country have held that the detention of individuals under ICE detainers who 14 would otherwise be released from custody violates the Fourth Amendment of the United States 15 16 Constitution, a preliminary injunction is necessary to halt this attempt to coerce local law
17 enforcement officers and agencies into a practice that would likely result in widespread

18 constitutional violations and substantial civil liability.

19

The information presented by proposed amici will aid the Court in assessing the balance

20 of the equities and the public interest put at issue by Plaintiff’s Motion for Preliminary Injunction.
21

22

CONCLUSION

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Proposed amici respectfully request that this Court grant this motion, allow them to

24 participate as amici curiae, and accept for filing the brief submitted with this motion. 25

26
27 1 ICE detainers are requests from ICE to hold an individual in local governmental custody to allow ICE to take the individual into federal custody.
28 MOT. FOR LEAVE TO FILE AMICI CURIAE BRIEF ISO PLAINTIFF’S MOTION FOR PI BY INDIVIDUAL SHERIFFS AND POLICE CHIEFS Case No. 3:17-cv-00485 2

Case 3:17-cv-00485-WHO Document 59 Filed 03/29/17 Page 4 of 5

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2 March 29, 2017 3 4 5 6 7 8 9 Counsel for Amici

Respectfully Submitted,
/s/ Matthew J. Piers
Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602 (312) 580-0100

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CERTIFICATE OF SERVICE

2

I hereby certify that service of the foregoing motion and proposed brief will be delivered

3 electronically on March 29, 2017, to counsel for Plaintiff and Defendants through the District’s
4

5 Electronic Case Filing system.

6 /s/ Matthew J. Piers
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Case 3:17-cv-00485-WHO Document 59-1 Filed 03/29/17 Page 1 of 16

1 MATTHEW J. PIERS (IL #2206161)

2

CHIRAG G. BADLANI (IL # 6308523) CARYN C. LEDERER (IL # 6304495)

3 HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000
4 Chicago, IL 60602

5

Telephone: (312) 580-0100 Fax: (312) 604-2623

6 E-mail: mpiers@hsplegal.com

7 Attorneys for Amici Curiae Individual Sheriffs 8 and Police Chiefs

9

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 10

11

) Case No. 3:17-cv-00485-WHO

12

)

13

CITY AND COUNTY OF SAN FRANCISCO, ) BRIEF AMICI CURIAE OF ) INDIVIDUAL SHERIFFS AND

14

Plaintiff,

) POLICE CHIEFS IN SUPPORT OF ) PLAINTIFF’S MOTION FOR

15

v.

) PRELIMINARY INJUNCTION

16 DONALD J. TRUMP, et al.,

) ) Date: April 14, 2017

17

) Time: 2:00 p.m.

) Dep’t: Courtroom 2

18

Defendants.

) Judge: Hon. William H. Orrick

19

) ) Date Filed: March 29, 2017

20

)

) Trial Date: Not yet set

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22

23

24

25

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BRIEF AMICI CURIAE OF INDIVIDUAL SHERIFFS AND POLICE CHIEFS Case No. 3:17-cv-00485-WHO

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1

TABLE OF CONTENTS

2

INTEREST OF AMICI CURIAE…………………………………………………….....1

3 INTRODUCTION……………………………………………………………………….2
4

5

ARGUMENT…………………………………………………………………………….3

6

I. The Executive Order Impedes Effective Law Enforcement…………..3

7

A. Trust and Respect Between Communities and Police Is Essential

8

to Effective Law Enforcement, and is Thwarted When Local Officers are Forced to Partake in Federal Immigration

9

Enforcement…..……………………………………………………...3

10

B. Policies Limiting Local and State Involvement in Federal

11

Immigration Enforcement Seek to Maintain and Build Trust Between the Community and the Police and Preserve Local

12

Resources….……………………………...…………………………..8

13

II. The Executive Order Seeks to Force Local Law Enforcement

14

Agencies to Engage in Conduct that Violates the Constitution and Subjects Local Law Enforcement Officers and Agencies to

15

Potential Liability…...…………………………………………………..10

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CONCLUSION………………….………………………………………………………12

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1

INTEREST OF AMICI CURIAE

2

Amici are individual police chiefs and sheriffs from cities and counties in eleven states.

3 Amici have extensive expertise in local law enforcement and in cooperative federal-state law
4 enforcement activities. They are intimately familiar with the challenges of performing critical law
5

6 enforcement functions in communities where immigrants fear the police and are vulnerable to

7 exploitation and crime. Amici represent some of the more than 400 jurisdictions that have policies

8 limiting local involvement in federal immigration operations.

9

Amici’s experience in keeping their communities safe has taught the critical importance of

10 bringing immigrants and their families out of the shadows. Community trust and cooperation are
11

12 essential to public safety, and sound police work is undermined by undocumented immigrants’

13 fears of interacting with law enforcement. This dynamic, moreover, leaves undocumented

14 immigrants more vulnerable to crime and exploitation, leading to more violence in the

15 communities amici are charged with protecting. 16
Amici have concluded that Executive Order 13768 (the “Executive Order”) is an attempt 17 18 to compel jurisdictions such as the City and County of San Francisco to take part in federal
19 immigration enforcement, including honoring civil detainers—requests from Immigration and

20 Customs Enforcement (“ICE”) to hold an individual in local governmental custody to allow ICE

21 to take the individual into federal custody—or risk losing vital federal funding. Greater local
22 involvement in immigration enforcement would cause community members to mistrust the police
23 and result in a decrease in cooperation, hindering the ability of local law enforcement agencies to
24
25 keep their communities safe. It would also drain scarce resources that would otherwise be used to

26 enhance public safety. Further, detention of individuals under ICE detainers who would otherwise

27 be released from custody has been found by federal courts across the country to violate the Fourth
28
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1 Amendment of the United States Constitution. Thus, amici have concluded that a preliminary

2 injunction is necessary to halt this attempt to coerce local law enforcement officers and agencies
3 into a practice that would likely result in widespread constitutional violations and substantial civil
4 5 liability. A full list of amici is attached as Exhibit A.

6

INTRODUCTION

7

The lessons amici have learned in protecting their communities shed important light on the

8 issues raised in these cases. When community residents live in constant fear that interactions with
9 local police could result in deportation, there is a fundamental breakdown in trust that impedes the
10 police from doing their jobs and threatens public safety. Extensive evidence shows that
11
12 undocumented immigrants—and their lawfully present family and neighbors—fear that turning to

13 the police will bring adverse immigration consequences. As a result, immigrant communities are

14 less willing to report crime or cooperate with police investigations. This fundamental breakdown

15 in trust poses a major challenge both to investigation of individual crimes and to proper allocation

16 of public safety resources.
17

18

Current policies limiting local and state involvement in federal immigration enforcement

19 address this issue of trust. Though they take several different forms, these policies generally aim

20 to preserve local and state resources and improve public safety by promoting cooperation between

21 law enforcement and the communities they serve.1 Many jurisdictions include a policy or law 22

23

24

25
26 1 See Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm.
27 on the Judiciary, 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), available at
28 http://www.judiciary.senate.gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. BRIEF AMICI CURIAE OF INDIVIDUAL SHERIFFS AND POLICE CHIEFS Case No. 3:17-cv-00484-WHO 2

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1 limiting continued detention pursuant to an ICE detainer.2 The Executive Order upends these

2 policies, to the detriment of community safety. 3
Further, the Executive Order threatens to withdraw federal funds from “sanctuary 4 5 jurisdictions,” which it equates with jurisdictions that refuse to comply with ICE detainer requests,
6 among other factors.3 Detentions pursuant to ICE detainers have been held by numerous courts to

7 violate the probable cause requirement of the Fourth Amendment. Thus, the Executive Order seeks

8 to compel local jurisdictions to take part in conduct that could result in unconstitutional detentions

9 and civil liability, or face the loss of federal funds. The federal government cannot force local
10 communities into such a Hobson’s choice.
11

12

ARGUMENT

13

I. The Executive Order Impedes Effective Law Enforcement.

14

A. Trust and Respect Between Communities and Police Is Essential to

15

Effective Law Enforcement, and is Thwarted When Local Officers are Forced to Partake in Federal Immigration Enforcement.

16 The experience of policing cities across the country has taught law enforcement officers
17

18 that “[t]o do our job, we must have the trust and respect of the communities we serve.”4 In order

19 to stop crime, police officers “need the full cooperation of victims and witnesses.”5

20

21

22

2 8 C.F.R. § 287.7; see also Jasmine C. Lee, Rudy Omri, and Julia Preston, What Are Sanctuary Cities?, N.Y. TIMES Feb. 6, 2017, http://www.nytimes.com/interactive/2016/09/02/us/sanctuary-

23 cities.html;Detainer Polices, IMMIGRANT LEGAL RESOURCE CENTER (Mar. 21, 2017), available at https://www.ilrc.org/detainer-policies [hereinafter ILRC Detainer Policies]

24 3 Exec. Order No. 13768, 82 Fed. Reg. 8799, 8801 at § 9(a) (Jan. 30, 2017) [hereinafter “Executive

Order”]. 25 4 Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining

26

the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police

27 Dep’t & President, Major Cities Chiefs Ass’n), available at http://www.judiciary.senate.

gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. 28 5 Id.

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1

This common-sense philosophy is sometimes called “community policing.” Community

2 policing is an approach to policing where police officers engage communities in a working 3
partnership to reduce crime and promote public safety.6 It thus requires police to interact with 4 5 neighborhood residents in a manner that will build trust and improve the level of cooperation with
6 the police department.7 When that relationship of trust is missing–as it is when people believe that

7 contacting police could lead to deportation for themselves or others–community policing breaks

8 down and the entire community is harmed.
9 According to a Pew survey, 57% percent of Latinos in the United States indicate that they
10 worry about deportation–of themselves, family members, or close friends–and 40% worry about
11
12 it “a lot.”8 This fear necessarily affects cooperation and communication with the police.

13 Immigrants–and their family members and neighbors who may be U.S. citizens or lawfully

14 present–often assume that interaction with police could have adverse consequences for themselves
15 or a loved one. 16
As a result, immigrant communities in general, and undocumented immigrants in 17 18 particular, are less likely to trust and cooperate with local police. One study of Latinos in four
19 major cities found that 70% of undocumented immigrants and 44% of all Latinos are less likely to

20 contact law enforcement authorities if they were victims of a crime for fear that the police will ask 21

22

23 6 See Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, POLICE FOUND., (Apr. 2009) (citing Mark H. Moore, “Problem-

24 Solving and Community Policing,” MODERN POLICING (Michael Tonry & Norval Morris eds.,

1992)), available at https://www.policefoundation.org/wp-content/uploads/2015/06/The-Role-of25 Local-Police-Narrative.pdf.

26

7 Id. 8 Mark Hugo Lopez & Susan Minushkin, 2008 National Survey of Latinos: Hispanics See Their

27 Situation in U.S. Deteriorating; Oppose Key Immigration Enforcement Measures, PEW HISPANIC

28

CENTER, (Sept. 18, 2008), at ii, available at http://pewhispanic.org/reports/report.php ?ReportID=93.

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1 them or people they know about their immigration status; and 67% of undocumented immigrants

2 and 45% of all Latinos are less likely to voluntarily offer information about, or report, crimes

3 because of the same fear.9
4

5

This study (among others) highlights that fears of immigration enforcement and the

6 resulting damage to law enforcement cooperation affects not just the undocumented community

7 but also individuals with citizenship or lawful status, in particular in “mixed-status” households.10

8

This problematic atmosphere of mistrust is felt by police as well. In one study, two-thirds

9 of the law enforcement officers polled held the view that recent immigrants reported crimes less
10 frequently than others.11 Those surveyed also indicated that the crimes that are underreported by
11

12 immigrants most often are serious ones, with domestic violence and gang violence at the top.12

13

The widely-recognized fear among immigrants of interacting with law enforcement poses

14 a fundamental challenge for community policing. Police cannot prevent or solve crimes if victims
15 or witnesses are unwilling to talk to them because of concerns that they or their loved ones or 16
neighbors will face adverse immigration consequences. As the president of the Major Cities Chiefs 17

18

19

9 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5-6 (May 2013), available at www.policylink.org/sites/default/files/INSECURE

20 _COMMUNITIES_REPORT_FINAL.PDF; see also id. at 1 (“Survey results indicate that the greater involvement of police in immigration enforcement has significantly heightened the fears

21 many Latinos have of the police, . . . exacerbating their mistrust of law enforcement authorities.”).

22

10 An estimated 85% of immigrants live in mixed-status families. See Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, POLICE

23 FOUND., (Apr. 2009), at 24, available at http://www.policefoundation.org/wp-content/ uploads/2015/06/The-Role-of-Local-Police-Narrative.pdf. See also Jill Theresa Messing, et al.,

24 Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in

25

the System, 30 J. Women & Soc. Work 328, 334 (2015) (“The results indicate that for each 1-point increase in fear of deportation [e.g., from ‘not much’ to ‘some’ worry, or from ‘some’ to ‘a lot’],

26

Latina participants were 15% less willing to report being victim of a violent crime to police.”). 11 Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are

27 Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (Sept.

2001). 28 12 Id. at 188-9.

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1 Association has explained to Congress, “[c]ooperation is not forthcoming from persons who see

2 their police as immigration agents.”13 3
Recent incidents in jurisdictions with policies targeted by the Executive Order demonstrate 4 5 the public safety benefits of these policies. For example, last year Los Angeles Police Department
6 officers had an encounter with a suspected gang member that resulted in a vehicle chase, a foot

7 pursuit, and shots fired. An undocumented immigrant helped police locate the suspect by providing

8 a description and vehicle information.14 In Tucson, Arizona, an undocumented man confronted
9 and struggled with a man who tried to steal a car with children inside. The immigrant held the
10 individual until police arrived, then cooperated with detectives in the follow-up investigation,
11
12 resulting in charges of kidnapping, auto theft, and burglary.15 These examples show why crime is

13 statistically significantly lower in counties that do not hold people in custody beyond their release

14 date pursuant to an ICE detainer compared to those that do.16 The Executive Order threatens to
15 penalize local agencies for developing these common sense policing policies. But as cautioned by 16
one official, “immigrants will never help their local police to fight crime once they fear we have 17 18 become immigration officers.”17

19

20 13 Statement of Tom Manger, supra note 1, at 2.

21 14 Chuck Wexler, Commentary: Why police support sanctuaries, PHILA. INQUIRER, March 10,

22

2017, available at http://www.philly.com/philly/opinion/20170310_Commentary__Why_police_ support_sanctuaries.html.

23

15 Id. 16 Tom K. Wong, “The Effects of Sanctuary Policies on Crime and the Economy,” CENTER FOR

24 AMERICAN PROGRESS, (Jan. 26, 2017), available at https://www.americanprogress.org/

issues/immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and25 the-economy/ (“The results of the CEM analysis show that there are, on average, 35.5 fewer crimes

26

per 10,000 people in sanctuary counties—a result that is highly statistically significant.”). 17 Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement,

27 NATIONAL IMMIGRATION LAW CENTER, (Aug. 2013), at 2 (statement of Chief Acevedo), available

at https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Opposition-to-Mandates28 2013-08-30.pdf.

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1

The underreporting of crimes by recent immigrants is a problem for the criminal justice

2 system.18 The most immediate consequence, of course, is that serious crimes go unreported and 3
unpunished. At a broader level, undercounting the incidence of crime in areas where immigrant 4 5 communities live leads to the under-allocation of law enforcement resources to those
6 communities.19 As one official explained, when criminal behavior goes unreported “[c]rime

7 multiplies” and “[u]nresolved resentments grow in the community.”20 Another added that the

8 under-reporting of crime “keeps fear at very high levels and diminishes quality of life.”21
9 Distrust between immigrants and the police also results in greater victimization of
10 immigrants. “When immigrants come to view their local police and sheriffs with distrust because
11 12 they fear deportation, it creates conditions that encourage criminals to prey upon victims and
13 witnesses alike.”22 This phenomenon has been termed the “deportation threat dynamic,” where an

14 individual does not report a crime of which they are the victim, fearing immigration
15 consequences.23 Nearly two-thirds of undocumented migrant workers participating in a study in 16
Memphis, Tennessee reported being the victim of at least one crime, with the most common being 17 18 theft and robbery.24 Respondents indicated that fewer than a quarter of these crimes were reported
19 to the police, and only one was reported by the victim himself.25

20

21

22

23

18 Davis et al., supra note 11, at 188. 19 Id.

24 20 Id.

25

21 Id. 22 Statement of Tom Manger, supra note 1, at 2.

26

23 Elizabeth Fussell, The Deportation Threat Dynamic & Victimization of Latino Migrants: Wage Theft & Robbery, 52 Soc. Q. 593, 610 (2011).

27 24 Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of

Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 (2010). 28 25 Id. at 165.

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1

Undocumented immigrants are especially vulnerable to domestic violence. A number of

2 studies have shown that abusive partners may utilize the threat of deportation in order to maintain 3
power and control.26 When the abusing partner has lawful status, financial dependence on a partner 4 5 with stable immigration status may similarly facilitate violence.27 Seventy percent of participants
6 in one study of domestic abuse victims said that immigration status was a major reason keeping

7 them from seeking help or reporting their abuse to the authorities—and thereby permitting the

8 violence to continue.28 In another study, the single largest factor independently affecting the rate

9 at which battered immigrant Latina women called the police was identified as immigration status.29

10

11

B. Policies Limiting Local and State Involvement in Federal Immigration Enforcement Seek to Maintain and Build Trust Between the Community

12

and the Police and Preserve Local Resources.

13

Current policies limiting local and state involvement in federal immigration enforcement,

14 while varying by jurisdiction, universally aim to enhance community trust and preserve local

15 resources. These policies seek to improve public safety by promoting cooperation between law

16 enforcement and the communities they serve.
17

18

Some administrative policies or laws include formal restrictions on local law enforcement’s

19 ability to apprehend or arrest an individual for federal immigration violations, including

20

21

22 26 See, e.g., Messing, supra note 10, at 330 (citing several studies); Angelica S. Reina, Brenda J.

23

Lohman & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 601

24 (2013). The latter study cited a participant who explained that a partner “beat me up and I could

have called the police because that was what I thought to do… but he threatened me…he told me 25 that if I called the police I was going to lose out…because they [police officers] …would … take

26

me, because I didn’t have legal documents.” Reina, Lohman & Maldonado at 601. 27 See, e.g., Messing, supra note 10, at 330.

27 28 Reina, Lohman & Maldonado, supra note 26, at 600.

29 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant 28 Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005).

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1 restrictions on arrests for civil violations of federal immigration law.30 Other policies include

2 restrictions on local law enforcement inquiries or investigations into a person’s immigration status 3
or the gathering of such information on a local level.31 Additionally, many jurisdictions have 4 5 adopted policies against continued detention of an individual based on immigration detainer
6 requests for at least some categories of noncitizens.32 Several states, including California, limit the

7 extent to which local police can cooperate with detainer requests, and more than 400 counties have

8 policies limiting cooperation with detainers.33
9 These policies also play an important role in preserving local law enforcement resources.
10 Complying with ICE detainer requests alone can add staggering costs—in some cases, tens of
11

12

13 30 See MICHAEL JOHN GARCIA AND KATE M. MANUEL, CONG. RESEARCH SERV., R43457, STATE

14 AND LOCAL “SANCTUARY” POLICIES LIMITING PARTICIPATION IN IMMIGRATION ENFORCEMENT, 9 (July 10, 2015), available at https://www.fas.org/sgp/crs/homesec/R43457.pdf; see also OR. REV.
15 STAT. ANN. § 181A.820 (“No law enforcement agency of the State of Oregon or of any political

16

subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign

17 citizenship present in the United States in violation of federal immigration laws.”); Washington, DC, Mayor’s Order 2011-174: Disclosure of Status of Individuals: Policies and Procedures of

18 District of Columbia Agencies (Oct. 19, 2011), at 2 (“No person shall be detained solely on the

19

belief that he or she is not present legally in the United States or that he or she has committed a civil immigration violation.”), available at http://dcregs.dc.gov/Gateway/NoticeHome.aspx?

20 NoticeID=1784041 [hereinafter DC Order]; Phoenix, AZ, Police Dep’t Operations Order Manual, (Jan. 2011) at 1.4, (“The investigation and enforcement of federal laws relating to illegal entry and

21 residence in the United States is specifically assigned to [Immigration and Customs Enforcement

22

within DHS].”), available at https://www.phoenix.gov/policesite/Documents/089035.pdf; see also Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (“[the sheriff] may not detain individuals

23

solely because of unlawful presence.”). 31 See, e.g., DC Order, supra note 30 (public safety employees “shall not inquire about a person’s

24 immigration status. . . for the purpose of initiating civil enforcement of immigration proceedings

that have no nexus to a criminal investigation”). 25 32 GARCIA AND MANUEL, supra note 30 at 14.

26

33 See California Transparency and Responsibility Using State Tools (TRUST) Act, Cal. Gov’t Code § 7282.5 (West 2014) (prohibiting local law enforcement agencies from honoring ICE

27 detainer requests for individuals without specific prior criminal convictions or charges as to which

a judge has made a finding of probable cause); see also Omri and Preston, supra note 2; see also 28 ILCR Detainer Policies, supra note 2.

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1 millions of dollars annually.34 Communities carefully allocate resources such as funds, training,

2 and officer duties to best serve local law enforcement needs; forced redistribution to immigration
3 enforcement would siphon limited resources away from where they are most needed while
4 5 simultaneously damaging community engagement and protection.35

6

The Executive Order seeks to wholly disrupt the policies that many communities, including

7 the City and County of San Francisco, have put in place to specifically ensure that immigrants do

8 not fear interactions with local law enforcement and prevent diversion of resources from effective
9 public safety efforts. Further, the Executive Order has the effect of preventing those communities
10 that want to adopt such policies from moving forward. By forcing jurisdictions to honor detainer
11
12 requests and further entangle themselves with federal immigration enforcement, the Executive

13 Order reduces the ability of local law enforcement agencies to build trust with immigrant

14 communities, leading the underreporting of crime and greater victimization described above.

15

II. The Executive Order Seeks to Force Local Law Enforcement Agencies to

16

Engage in Conduct that Violates the Constitution and Subjects Local Law

Enforcement Officers and Agencies to Potential Liability. 17

18

The Executive Order seeks to require jurisdictions to honor ICE detainers or risk losing

19 federal funding. However, numerous courts have found that continuing to detain an individual

20 under an ICE detainer for longer than they otherwise would be held violates the Fourth
21 Amendment. Cities and counties should not be faced with the stark choice of losing federal funds 22
or committing constitutional violations for which they will be subject to civil liability. 23

24

25

34 See Legislative Threats to Undermine Community Safety Policies: The Costs of Entangling Local Policing and Immigration Law, NATIONAL IMMIGRANT JUSTICE CENTER AND NATIONAL

26

IMMIGRATION LAW CENTER, (Aug. 2015), available at http://immigrantjustice.org/sites/ immigrantjustice.org/files/201508_05_NIJC_NILC_EnforcementCosts.pdf.

27 35 See Letter from Law Enforcement Task Force to Hon. Trey Gowdy and Hon. Zoe Lofgren (July

20, 2015) available at https://immigrationforum.org/wp-content/uploads/2015/07/072015-LEITF28 Letter-House.pdf.

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1

The Fourth Amendment’s most basic requirement is that all arrests must be supported by

2 probable cause.36 Probable cause requires that “the facts and circumstances within . . . the officers’ 3
knowledge and of which they ha[ve] reasonably trustworthy information are sufficient in 4 5 themselves to warrant a man of reasonable caution in the belief that an offense has been or is being
6 committed.”37 Under long-standing Fourth Amendment precedent, numerous federal courts have

7 found that continued detention under an ICE detainer, absent probable cause, gives rise to a claim

8 for a violation of the Fourth Amendment and subjects the detaining officer or jurisdiction to civil
9 liability. 38 These courts have found that local jails must have a warrant or probable cause of a new 10
offense to detain a person after they would otherwise be released from custody.39 11

12

13 36 See Dunaway v. New York, 442 U.S. 200, 213 (1979).

14 37 Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (internal quotation marks, brackets, and

citation omitted).

15 38 See Morales v. Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014), aff’d on appeal, 793 F.3d 208

16

(1st Cir. 2015) (plaintiff stated Fourth Amendment claim where she was held for 24 hours on ICE detainer issued without probable cause); Galarza v. Szalczyk, No. 10-cv-06815, 2012 WL

17 1080020, at *10, *13 (E.D. Pa. Mar. 30, 2012) (where plaintiff was held for 3 days after posting bail based on an ICE detainer, he stated a Fourth Amendment claim against both federal and local

18 defendants), rev’d on other grounds, 745 F.3d 634 (3d Cir. 2014); Miranda-Olivares v. Clackamas

19

Cnty., No. 12-cv-02317-ST, 2014 WL 1414305, at *10 (D. Or. Apr. 11, 2014) (plaintiff’s detention on an ICE detainer after she would otherwise have been released “constituted a new arrest, and

20 must be analyzed under the Fourth Amendment”); Mendoza v. Osterberg, No. 13CV65, 2014 WL 3784141, at *6 (D. Neb. July 31, 2014) (recognizing that “[t]he Fourth Amendment applies to all

21 seizures of the person,” and thus, “[i]n order to issue a detainer[,] there must be probable cause”)

22

(internal quotation marks, ellipses, and citations omitted); Villars v. Kubiatowski, 45 F.Supp.3d 791 (N.D. Ill. 2014) (holding that plaintiff stated a Fourth Amendment claim where he was held

23

on an ICE detainer that “lacked probable cause); Uroza v. Salt Lake Cnty., No. 11CV713DAK, 2013 WL 653968, at *5-6 (D. Ut. Feb. 21, 2013) (holding that plaintiff stated a Fourth Amendment

24 claim where ICE issued his detainer without probable cause); Vohra v. United States, No. 04-cv-

00972-DSF-RZ, 2010 U.S. Dist. LEXIS 34363, *25 (C.D. Cal. Feb. 4, 2010) (magistrate’s report 25 and recommendation) (“Plaintiff was kept in formal detention for at least several hours longer due

26

to the ICE detainer. In plain terms, he was subjected to the functional equivalent of a warrantless arrest” to which the “‘probable cause’ standard . . . applies”), adopted, 2010 U.S. Dist. LEXIS

27 34088 (C.D. Cal. Mar. 29, 2010).

39 See, e.g., Morales, 793 F.3d at 217 (1st Cir. 2015) (“Because Morales was kept in custody for a 28 new purpose after she was entitled to release, she was subjected to a new seizure for Fourth

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1

The Executive Order contains no guidance or directive that detainers will issue only with

2 a showing of probable cause or a judicial warrant. There is thus no lawful way for local 3
jurisdictions to comply with the Executive Order’s requirement to honor ICE detainers. Further, 4 5 the Supreme Court has held that the federal government’s spending power “may not be used to
6 induce the States to engage in activities that would themselves be unconstitutional.”40 The

7 Executive Order’s attempt to strip jurisdictions of funding if they do not honor ICE detainers is

8 unlawful, and forces localities to choose between funding and committing and subjecting

9 themselves to liability for constitutional violations. As such, the Executive Order should be
10 preliminarily enjoined.
11

12

CONCLUSION

13

For the foregoing reasons, as well as the reasons set forth in Plaintiff’s Motion, this Court

14 should grant the nationwide preliminary injunction against the Executive Order. 15

16 March 29, 2017
17 18 19 20 21 22 23 24

Respectfully Submitted,
/s/ Matthew J. Piers
Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100 Counsel for Amici Curiae

25

26

27 Amendment purposes— one that must be supported by a new probable cause justification.”); Vohra, 2010 U.S. Dist. LEXIS 34363 (C.D. Cal. 2010).
28 40 South Dakota v. Dole, 483 U.S. 203, 210–11 (1987). BRIEF AMICI CURIAE OF INDIVIDUAL SHERIFFS AND POLICE CHIEFS
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EXHIBIT A

Case 3:17-cv-00485-WHO Document 59-1 Filed 03/29/17 Page 16 of 16

1

EXHIBIT A

2

Amici Individual Sheriffs and Police Chiefs are:

3  Chief Art Acevedo, Houston, Texas, Police Department;
4

5

 Chief Charles Beck, Los Angeles, California, Police Department;

6

 Chief Chris Burbank (retired), Salt Lake City, Utah, Police Department;

7

 Sheriff Jerry Clayton, Washtenaw County, Michigan, Sheriff’s Office;

8  Sheriff Mark Curran, Lake County, Illinois, Sheriff’s Office;
9

10

 Sheriff Tony Estrada, Santa Cruz County, Arizona, Sheriff’s Office;

11

 Sheriff Michael Haley (retired), Washoe County, Nevada, Sheriff’s Office;

12

 Sheriff Bill McCarthy, Polk County, Iowa, Sheriff’s Office;

13  Sheriff Joe Pelle, Boulder County, Colorado, Sheriff’s Office;
14

15

 Chief Celestino Rivera, Lorain, Ohio, Police Department;

16

 Sheriff John Urquhart, King County, Washington, Sheriff’s Office;

17

 Sheriff Lupe Valdez, Dallas County, Texas, Sheriff’s Department; and

18  Sheriff Richard Wiles, El Paso County, Texas, Sheriff’s Office.
19

20

21

22

23

24

25

26

27

28

EXHIBIT A BRIEF AMICI CURIAE OF INDIVIDUAL SHERIFFS AND POLICE CHIEFS
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1 MATTHEW J. PIERS (IL #2206161)

2

CHIRAG G. BADLANI (IL #6308523) CARYN C. LEDERER (IL #6304495)

3 HUGHES SOCOL PIERS RESNICK & DYM, LTD.

70 West Madison St., Suite 4000 4 Chicago, IL 60602

5 Telephone: (312) 580-0100 Fax: (312) 604-2623

6 E-mail: mpiers@hsplegal.com

7 Attorneys for Amici Curiae Individual Sheriffs 8 and Police Chiefs

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12

) )

13

) No. 3:17-cv-00485-WHO

CITY AND COUNTY OF SAN FRANCISCO, )

14

) [PROPOSED] ORDER GRANTING

15

Plaintiff,

) MOTION FOR LEAVE TO FILE ) AMICI CURIAE BRIEF IN

16

v.

) SUPPORT OF PLAINTIFF’S

17 DONALD J. TRUMP, et al.,

) MOTION FOR PRELIMINARY ) INJUNCTION BY INDIVIDUAL

18

) SHERIFFS AND POLICE CHIEFS

)

19

Defendants.

)

20

) )

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING MOT. FOR LEAVE TO FILE AMICUS BRIEF ISO PLAINTIFF’S MOTION FOR PI BY INDIVIDUAL SHERIFFS AND POLICE CHIEFS
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1

[PROPOSED ORDER]

2

On March 29, 2017, pursuant to the Court’s March 21, 2017 Order Regarding Amicus

3

4 Briefing (Dkt. No. 31), proposed amici, certain individual sheriffs and police chiefs, filed a

5 motion seeking leave to file an amici curiae brief in support of Plaintiff’s motion seeking a

6 preliminary injunction. Having considered the papers and pleadings on file, the Court GRANTS

7 the Motion for Leave to File Amici Curiae Brief in Support of Plaintiff By Individual Sheriffs 8
and Police Chiefs and ORDERS that the brief submitted by these amici be filed. 9

10

11

IT IS SO ORDERED.

12

13 Dated: _____________________, 2017
14 15

_______________________________________

16

17

HONORABLE WILLIAM H. ORRICK

18

JUDGE, UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING MOT. FOR LEAVE TO FILE AMICUS BRIEF ISO PLAINTIFF’S MOTION FOR PI BY INDIVIDUAL SHERIFFS AND POLICE CHIEFS
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 Case 3:17-cv-00485-WHO Document 60 Filed 03/29/17 Page 1 of 22

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

CITY AND COUNTY OF SAN FRANCISCO’S

Plaintiff,

REPLY TO OPPOSITION TO MOTION FOR

19

PRELIMINARY INJUNCTION

vs.

20

Date:

April 14, 2017

DONALD J. TRUMP, President of the United Time:

2:00 p.m.

21 States, UNITED STATES OF AMERICA,

Judge:

Honorable William H. Orrick

JOHN F. KELLY, Secretary of United States Dept:

Courtroom 2

22 Department of Homeland Security,

JEFFERSON B. SESSIONS III, Attorney

Date Filed: January 31, 2017

23 General of the United States, DOES 1-100,

Trial Date: Not yet set

24

Defendants.

25

26

27

28
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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................2 4
I. Defendants Have Not Clarified The Meaning Or Scope Of The Executive

5

Order. .......................................................................................................................2

6

II. San Francisco Is Likely To Succeed On The Merits Of Its Claims.........................4

A. San Francisco’s Claims Are Meritorious. ....................................................4 7
1. San Francisco Complies With Section 1373, As Properly

8

Interpreted. .......................................................................................4

9

2. Section 1373 Is Unconstitutional Even As Properly Interpreted. ....5

3. Defendants’ Broad Reading Of Section 1373, And Their

10

Executive Order Purporting To Implement It, Are

11

Unconstitutional. ..............................................................................6

B. San Francisco’s Claims About Section 1373 Are Justiciable. .....................7 12
C. San Francisco’s Claims About The Executive Order Are Justiciable. ........8

13

III. San Francisco Will Suffer Irreparable Harm In The Absence Of Injunctive

14

Relief. .....................................................................................................................10

IV. The Balance Of Equities And Public Interest Favor A Preliminary Injunction. ...13 15

V. The Scope Of Injunctive Relief Sought By San Francisco Is Appropriate............14

16

A. Nationwide Injunctive Relief Is Warranted. ..............................................14

17

B. An Injunction Against The President Is Warranted. ..................................15

18 CONCLUSION..............................................................................................................................15

19

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1 Federal Cases
2

TABLE OF AUTHORITIES

Adam Bros. Farming, Inc. v. Cty. of Santa Barbara 3 604 F.3d 1142 (9th Cir. 2010) ...................................................................................................10

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez 5 458 U.S. 592 (1982)...............................................................................................................9, 10

6 Am. Trucking Ass’ns, Inc. v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009) ...................................................................................................11
7 Ariz. Dream Act Coal. v. Brewer
8 757 F.3d 1053 (9th Cir. 2014) .............................................................................................13, 14
9 Associated General Contractors of California, Inc. v. Coalition for Economic Equity 10 950 F.2d 1401 (9th Cir. 1991) ...................................................................................................11
11 Babbitt v. United Farm Workers Nat. Union 442 U.S. 289 (1979).................................................................................................................7, 9
12 Bond v. United States
13 134 S. Ct. 2077 (2014)...............................................................................................................15
14 Bresgal v. Brock 15 843 F.2d 1163 (9th Cir. 1987) ...................................................................................................15
16 Califano v. Yamasaki 442 U.S. 682 (1979)...................................................................................................................14
17 City of N.Y. v. United States
18 179 F.3d 29 (2d Cir. 1999) ..........................................................................................................5

19 Colwell v. Dep’t of Health & Human Servs. 20 558 F.3d 1112 (9th Cir. 2009) .....................................................................................................7
21 Franklin v. Massachusetts 505 U.S. 788 (1992)...................................................................................................................15
22 Goldie’s Bookstore, Inc. v. Superior Court of State of Cal.
23 739 F.2d 466 (9th Cir. 1984) .....................................................................................................11

24 Grubbs v. Bailes 445 F.3d 1275 (10th Cir. 2006) .................................................................................................10
25

26

Hal Roach Studios, Inc. v. Richard Feiner & Co. 896 F.2d 1542 (9th Cir. 1989) ....................................................................................................9

27 Hawai’i v. Trump
28 No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) ..........................15

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Holder v. Humanitarian Law Project 1 561 U.S. 1, 16 (2010)..................................................................................................................9
2 In re Coleman 3 560 F.3d 1000 (9th Cir. 2009) .................................................................................................7, 9

4 Los Angeles Memorial Coliseum Commission v. National Football League 634 F.2d 1197 (9th Cir. 1980) .............................................................................................12, 13
5 Lujan v. Defs. of Wildlife
6 504 U.S. 555 (1992).....................................................................................................................7
7 Meinhold v. U.S. Dep’t of Def. 8 34 F.3d 1469 (9th Cir. 1994) .....................................................................................................14
9 Melendres v. Arpaio 695 F.3d 990 (9th Cir. 2012) .....................................................................................................14
10 Nat’l Council of La Raza v. Cegavske
11 800 F.3d 1032 (9th Cir. 2015) .....................................................................................................8
12 Nat’l Fed’n of Indep. Bus. v. Sebelius 13 567 U.S. 519 S. Ct. 2566 (2012)..................................................................................................5
14 Newton v. Am. Debt Servs., Inc. 75 F. Supp. 3d 1048 (N.D. Cal. 2014) .........................................................................................4
15 Panama Ref. Co. v. Ryan
16 293 U.S. 388 (1935)...................................................................................................................15

17 Printz v. United States 18 521 U.S. 898 (1997).................................................................................................................5, 6
19 Pruitt v. Cheney 963 F.2d 1160 (9th Cir. 1991) ...................................................................................................15
20 Reno v. Catholic Soc. Servs., Inc.
21 509 U.S. 43 (1993).......................................................................................................................9

22 Second City Music, Inc. v. City of Chicago 333 F.3d 846 (7th Cir. 2003) .....................................................................................................12
23

24

Skydive Arizona, Inc. v. Quattrocchi 673 F.3d 1105 (9th Cir. 2012) .............................................................................................14, 15

25 Steinle v. City and County of San Francisco
26 No. 16-CV-02859-JCS, 2017 WL 67064 (N.D. Cal. Jan. 6, 2017) .............................................2

27 Stuller, Inc. v. Steak N Shake Enters. 695 F.3d 676 (7th Cir. 2012) ....................................................................................................12
28

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Sunbelt Rentals, Inc. v. Victor 1 No. C 13-4240 SBA, 2014 WL 492364 (N.D. Cal. Feb. 5, 2014)...............................................4
2 Susan B. Anthony List v. Driehaus 3 134 S. Ct. 2334 (2014)...............................................................................................................10

4 Texas v. United States 201 F. Supp. 3d 810 (N.D. Tex. 2016) ..................................................................................9, 15
5 Texas v. United States
6 787 F.3d 733 (5th Cir. 2015) .............................................................................................8, 9, 15
7 U.S. v. JP Morgan Chase Bank Account No. Ending 8215 8 in Name of Ladislao V. Samaniego, VL: $446,377.36, 835 F.3d 1159 (9th Cir. 2016)............10
9 United States Department of Defense v. Meinhold 510 U.S. 939 (1993)...................................................................................................................14
10 United States v. North Carolina
11 192 F. Supp. 3d 620 (M.D.N.C. 2016) ......................................................................................13
12 Walsh v. City and Cty. of Honolulu 13 423 F. Supp. 2d 1094 (D. Haw. 2006) .......................................................................................11
14 Washington v. Trump 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................15
15 Washington v. Trump
16 No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) ...........................................15

17 Wolfson v. Brammer 18 616 F.3d 1045 (9th Cir. 2010) ...............................................................................................7, 10
19 Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme 433 F.3d 1199 (9th Cir. 2006) .....................................................................................................9
20 Youngstown Sheet & Tube Co. v. Sawyer
21 343 U.S. 579 (1952)...................................................................................................................15

22 Federal Statutes

23 8 U.S.C. § 1373 ................................................................................................................................ passim
24 25 San Francisco Ordinances
26 San Francisco, Cal., Ordinance No. 96-16 (June 7, 2016) .........................................................................................................7, 8
27

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Other Authorities 1
Declined Detainer Outcome Report FAQs, U.S. Immigration and Customs Enf’t, 2 https://www.ice.gov/declined-detainer-outcome-report (last visited Mar. 28, 2017)..................3
3 ICE is targeting ‘sanctuary cities’ with raids, CNN.com (Mar. 25, 2017, 8:54 AM) 4 available at http://www.cnn.com/2017/03/23/politics/sanctuary-city-ice-raids/. .......................9

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

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21

22

23

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1

INTRODUCTION

2

States and local governments have the sovereign power to decide what laws and policies best

3 protect the health and safety of their residents. San Francisco—alongside hundreds of other cities and

4 states across the country—exercises that power by leaving enforcement of federal immigration policy

5 to the federal government, and instead fostering trust with its immigrant communities in order to

6 encourage all city residents to report crimes, send their children to school, and use public health

7 services. Under its sanctuary city law, San Francisco does not comply with ICE detainer requests

8 unless they are supported by a criminal warrant, and it does not inform ICE when undocumented

9 individuals are released from county jails except under court order. These ordinances comply with

10 8 U.S.C. § 1373, which provides only that state and local governments may not prohibit their

11 employees from sharing an individual’s immigration or citizenship status with federal immigration

12 agents.

13

Defendants nonetheless seek to force San Francisco to change its laws. On January 25, 2017,

14 President Trump issued an unconstitutional Executive Order, threatening to deprive sanctuary cities of

15 federal funds if they do not comply with Section 1373. More recently, Attorney General Sessions

16 announced on March 27 that Section 1373 requires local jurisdictions to comply with detainer requests

17 or lose certain federal funding. And he specifically denounced San Francisco and its sanctuary laws.

18

Defendants offer scant response to San Francisco’s arguments on the merits. Instead, they

19 claim this dispute is unripe and San Francisco’s harms are not imminent. These claims are at odds

20 with Defendants’ conspicuous public pronouncements that San Francisco is a wayward jurisdiction,

21 and they ignore that San Francisco has suffered community harm and must place significant monies in

22 its budget on reserve by May 15, 2017 if this Court does not grant relief. More fundamentally, Section

23 1373 and the Executive Order work constitutional harm by intruding into local sovereignty today, and

24 this Court need not wait for further punitive action by Defendants to enjoin these invalid enactments.

25

Accordingly, San Francisco seeks a preliminary order from this Court (1) enjoining Defendants

26 from taking action against it under either the Executive Order or Section 1373, because San Francisco

27 complies with Section 1373, or alternatively because Section 1373 exceeds Congress’s powers under

28 the Tenth Amendment; and (2) enjoining Defendants from enforcing Section 1373 and Section 9(a) of

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1 the Executive Order against any jurisdiction because Section 9(a) is unconstitutional due to its reliance

2 on Section 1373 and because it violates the Spending Clause, Separation of Powers, and the Tenth

3 Amendment of the United States Constitution.

4

ARGUMENT

5 I. Defendants Have Not Clarified The Meaning Or Scope Of The Executive Order.

6

The Executive Order is coercive in part because it threatens unspecified yet potentially dire

7 consequences, and fails to inform local jurisdictions what conduct places their funding at risk. In its

8 Motion, San Francisco acknowledged that if Defendants clarified the meaning and scope of the

9 Executive Order, they might render preliminary relief unnecessary. But Defendants have clarified

10 nothing—and in fact their Opposition and public statements are self-contradictory and have only

11 added to the uncertainty in both regards.

12

First, Defendants fail to clarify what Section 1373—and by extension, the Executive Order—

13 require, and whether detainer “requests” are actually mandatory. The Order appeared to indicate that

14 compliance with detainers is mandated by Section 1373. See Exec. Order No. 13,768, § 9(a), 82 Fed.

15 Reg. 8799, 8801 (Jan. 30, 2017) (defining sanctuary jurisdictions as those that refuse to comply with

16 Section 1373; id. § 9(b) (equating “sanctuary jurisdictions” with jurisdictions “that ignored or

17 otherwise failed to honor any detainers with respect to such aliens”). Yet Defendants’ Opposition

18 claims that the Executive Order has only a limited reach because it does not “alter the existing

19 requirements of Section 1373 (or any other federal law)” (Opp. at 1), and the federal government has

20 previously taken the position that compliance with detainer requests was voluntary. Supplemental 21 Request for Judicial Notice in Support of Motion for Preliminary Injunction (“Supp. RJN”) Exh. E.1

22

Second, Defendants also fail to clarify precisely what funds are at risk. Defendants suggest in

23 several places that the Executive Order threatens only a defined subset of federal funds: namely,

24

25

1 Defendants also apparently believe—but never forthrightly state—that ICE notification

requests, seeking information about when an undocumented individual will be released from custody,

26 are also mandatory. See Opp. at 5 n.2 (apparently disagreeing with the District Court’s holding in

Steinle v. City and County of San Francisco, No. 16-CV-02859-JCS, 2017 WL 67064 (N.D. Cal. Jan.

27 6, 2017), that Section 1373 does not require jurisdictions to notify federal officials of an individual’s

date of release from custody); see also Opp. at 5 (stating that Section 1373 “ensures the sharing of

28 immigration information between federal and state actors”) (emphasis added).

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1 “federal grants” that are conditioned on “compliance with Section 1373.” Opp. at 11; see also id. at 3,

2 9. But upon closer inspection, these suggestions are not reassuring. To San Francisco’s knowledge,

3 there are no federal grants with express statutory conditions requiring compliance with Section 1373.

4 Instead, Congress has enacted funding statutes that require grantees to comply with “all applicable

5 federal law,” and the Department of Justice (“DOJ”) has independently determined that Section 1373

6 is an “applicable federal law” in a few instances. See, e.g., Whitehouse Decl. Exh. B. Thus, it is

7 Defendants, rather than Congress, who currently decide whether federal funds require compliance with

8 Section 1373—and Defendants have not specified to which grants they will apply that requirement.

9 Similarly, Defendants contend that the Executive Order can reach only “federal grants,” yet federal

10 funds reimbursed to state and local jurisdictions for entitlement programs like Medicaid and

11 Temporary Assistance for Needy Families may also be considered “grants.” See Br. Amicus Curiae

12 Int’l Municipal Lawyers Ass’n Supp. Pl.’s Mot. Prelim. Inj. 8, ECF No. 47-1. Accordingly, the

13 ambiguity about which funds Defendants will target remains.

14

Adding to the uncertainty on both points, Defendants’ public statements belie their

15 representations in court. On the same day that Attorney General Sessions stated in public remarks that

16 failure to comply with detainer requests violates federal law and will render jurisdictions ineligible for

17 DOJ grants under Section 1373 (Supp. RJN Exh. C), he also filed a brief in the Supreme Court of 18 Massachusetts stating that “detainers are voluntary.” Supp. RJN Exh. F at 22; see also id. at 22-23.2

19 Similarly, Defendants’ statements to members of Congress that they have not yet formed any position

20 on the intended scope of the Executive Order (see Opp. Attachment 1), conflict with their

21 representations to this Court that the Executive Order threatens only limited federal funds. Defendants

22 cannot have it one way in their public statements and another way before this Court; they should either

23 state clearly what the Executive Order means or be held to their public boasts.

24 //

25 2 ICE’s public position on this issue is evasive; in response to a frequently asked question
26 about whether DHS has changed its legal position that detainer requests are voluntary, ICE’s website states confusingly that “DHS has not retreated from its position that detainers serve as a legally-
27 authorized request, upon which a law enforcement agency may rely . . . .” Declined Detainer Outcome Report FAQs, U.S. Immigration and Customs Enf’t, https://www.ice.gov/declined-detainer-
28 outcome-report (last visited Mar. 28, 2017).

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1 II. San Francisco Is Likely To Succeed On The Merits Of Its Claims.

2

Section 1373 provides that a “local government entity or official may not prohibit, or in any

3 way restrict, any government entity or official from sending to, or receiving from, [federal

4 immigration officials] information regarding the citizenship or immigration status . . . of any

5 individual.” 8 U.S.C. § 1373(a). There is controversy over what this provision means, whether

6 San Francisco presently complies with it, whether it is constitutional even as properly construed, and

7 whether the Executive Order may condition funding on compliance with Defendants’ overly broad

8 reading of this statute. These disputes are live now, and San Francisco is likely to prevail on each.

9

A. San Francisco’s Claims Are Meritorious.

10

1. San Francisco Complies With Section 1373, As Properly Interpreted.

11

Defendants’ expansive interpretation of Section 1373 as requiring compliance with detainer

12 requests is irreconcilable with its plain language, which says nothing at all about such requests. See 8

13 U.S.C. § 1373; Mot. at 13-16. Accordingly, the Court should hold that Section 1373 does exactly

14 what it says—i.e., prevents local governments from restricting their officials from sharing information

15 with ICE about an individual’s citizenship or immigration status—and no more. And because

16 San Francisco’s sanctuary laws (Administrative Code Chapters 12H and 12I) do not prevent its

17 officials from sharing citizenship or immigration information with ICE, the Court should hold that

18 these laws comport with Section 1373.

19

Defendants entirely fail to respond to this argument, and accordingly they concede it for

20 purposes of this motion. See, e.g., Newton v. Am. Debt Servs., Inc., 75 F. Supp. 3d 1048, 1063–64

21 (N.D. Cal. 2014); Sunbelt Rentals, Inc. v. Victor, No. C 13-4240 SBA, 2014 WL 492364, at *9 n.7

22 (N.D. Cal. Feb. 5, 2014). Nor could they credibly argue the point: Chapter 12H forbids employees

23 from sharing specified categories of information—“release status” and “other such personal

24 information”—but does not restrict employees from giving ICE information about an individual’s

25 “citizenship or immigration status.” Mot. at 19-21. Because San Francisco complies with Section

26 1373’s plain language, it is likely to succeed on the merits of its claim.

27 //

28 //
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1

2. Section 1373 Is Unconstitutional Even As Properly Interpreted.

2

Regardless of how Section 1373 is interpreted, it is unconstitutional. Even read properly, it

3 violates the Tenth Amendment by impermissibly interfering with the operation of state and local

4 government, for two reasons. First, Section 1373 regulates the States in their capacity as States. This

5 is a per se violation of the Tenth Amendment. Printz v. United States, 521 U.S. 898, 932 (1997)

6 (holding there is a “fundamental defect” when “it is the whole object of the law to direct the

7 functioning of the state executive”) (emphasis in original). Second, it commandeers state employees

8 to assist with enforcing federal immigration law. As the Supreme Court explained in Printz, the

9 federal government cannot evade the Tenth Amendment by “command[ing] the States’ officers” rather

10 than the states themselves. Id. at 935. Such a trespass always violates the Tenth Amendment, and “no

11 case-by-case weighing of the burdens or benefits is necessary” to resolve the case. Id.

12

Defendants barely respond to these arguments. Without even mentioning Printz, Defendants

13 rely solely on a Second Circuit case that upheld Section 1373 against a facial challenge, holding that

14 States cannot forbid “voluntary cooperation by state or local officials” with federal immigration

15 enforcement efforts. Opp. at 21 (quoting City of N.Y. v. United States, 179 F.3d 29, 35 (2d Cir. 1999)).

16 The Second Circuit reasoned that “the Supremacy Clause . . . bars states from taking actions that

17 frustrate federal laws and regulatory schemes.” City of N.Y, 179 F.3d at 35. But as the Supreme Court

18 later held, the Second Circuit—and Defendants—are wrong. States do have the right to refuse to

19 participate in federal programs, even when that might frustrate federal objectives. See, e.g., Nat’l

20 Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2604-07 (2012) (holding Congress

21 could not compel unwilling states to participate in the Affordable Care Act’s Medicaid expansion).

22

The Second Circuit also failed to appreciate the extent of Section 1373’s intrusion into state

23 and local sovereignty. A local government’s ability to control the actions of its employees, and the use

24 they make of information they have obtained in performing their duties, is central to its sovereignty.

25 Mot. at 17. By limiting San Francisco’s control over its employees’ use of official information,

26 Section 1373 prevents San Francisco from assuring residents that they can interact with local officials

27 without fear that their immigration status information will be turned over to ICE. This, in turn, hinders

28
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1 San Francisco’s ability to establish the community trust it has reasonably determined is necessary to

2 promote public health and safety for the entire community. Mot. at 3, 24-25.

3

Moreover, the facts of this case illustrate precisely why the Supreme Court set out a bright line

4 rule forbidding federal commands like these to state employees. What began as a simple prohibition

5 by Congress on forbidding state employees from sharing certain information with ICE has transmuted

6 into Defendants requiring that cities must comply with detainer requests, and emboldened Defendants

7 to issue an Executive Order that threatens to cut all federal funding from cities that do not comply. In

8 short, once the federal government begins to treat local employees and resources as its own, there is no

9 cabining the intrusion. Printz’s bright line approach is correct, and this Court should enjoin Section

10 1373’s ongoing intrusion into local affairs.

11

3. Defendants’ Broad Reading Of Section 1373, And Their Executive Order

Purporting To Implement It, Are Unconstitutional.

12

13

If Defendants’ overly broad interpretation of Section 1373 were correct, the constitutional

14 violation would be even more egregious. Complying with ICE detainer requests would require local

15 personnel to commit significant resources to jail their own residents—in their own facilities at their

16 own cost—on federal civil immigration grounds at the federal government’s direct order. Hennessy

17 Decl. ¶ 11. Forcing state and local jurisdictions to do this is a blatant violation of the Tenth

18 Amendment’s anti-commandeering principle. See Mot. at 14-15.

19

The Executive Order is inextricably intertwined with Section 1373, and because Section 1373

20 violates the Tenth Amendment, so too does the Executive Order. As Defendants state, “Section 9 of

21 the Order is meant simply to ‘ensure’ compliance with [Section 1373].” Opp. at 21. But because

22 Section 1373 is unconstitutional, the Executive Order’s attempt to enforce it should be enjoined. The

23 Executive Order should also be enjoined because it violates Separation of Powers by making funding

24 decisions that the Constitution vests in Congress, not the President. Mot. at 9-10. It also violates the

25 Spending Clause by imposing new conditions on existing federal funding, imposing conditions not

26 germane to the purpose of the funds, dragooning the states by threatening an impermissibly large

27 quantity of federal funds, and inducing the states to violate individuals’ Fourth Amendment rights.

28 Mot. at 10-14. For these reasons, the Court should enjoin enforcement of Section 9.

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1

B. San Francisco’s Claims About Section 1373 Are Justiciable.

2

Defendants baldly state that San Francisco is unlikely to succeed on the merits of any of its

3 claims because none of them are justiciable. Opp. at 17-20. But except for a few conclusory

4 statements that San Francisco has not suffered any concrete injury resulting from Section 1373,

5 Defendants’ justiciability argument speaks only to San Francisco’s claims about the Executive Order.

6 Defendants do not meaningfully dispute that San Francisco’s request for a finding that it complies with

7 Section 1373, or its challenge to the constitutionality of that Section, are justiciable. Nor could they.

8

Two components of the Article III case-or-controversy requirement are standing and ripeness.

9 Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009). To have standing, a

10 plaintiff must have suffered an injury in fact that is “concrete and particularized,” that can be fairly

11 traced to the defendant’s action, and that can be redressed by a favorable decision of the court. Lujan

12 v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). A dispute is ripe in the constitutional sense if it

13 “present[s] concrete legal issues, presented in actual cases, not abstractions.” Colwell, 558 F.3d at

14 1123 (internal quotation marks omitted). These concepts are “closely related.” Id. at 1123; see also

15 Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010) (“The constitutional component of ripeness

16 overlaps with the ‘injury in fact’ analysis for Article III standing.”). Both requirements are satisfied

17 here, because San Francisco is currently facing a “realistic danger of sustaining a direct injury as a

18 result of [Section 1373’s] operation or enforcement” (Babbitt v. United Farm Workers Nat. Union, 442

19 U.S. 289, 298 (1979)), and there is a substantial, immediate and real controversy over whether

20 San Francisco complies with the law (see In re Coleman, 560 F.3d 1000, 1005 (9th Cir. 2009)).

21

Two kinds of facts make clear that San Francisco’s claims are ripe and justiciable today. The

22 first is the undisputed evidence that San Francisco has already altered its laws and taken concrete steps

23 to comply with Section 1373. As the Board of Supervisors recently made clear, were it not for Section

24 1373, San Francisco would prohibit its officials from sharing information about individuals’

25 immigration status with ICE. See, e.g., March 8 Request for Judicial Notice in Support of Motion for

26 Preliminary Injunction (“RJN”) Exh. E at 8, 10. Instead, San Francisco was forced to amend its

27 sanctuary city law to remove a provision that restricted San Francisco officials from using City

28 resources to share information about immigration status. S.F., Cal., Ordinance No. 96-16 (June 7,

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1 2016); see Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015) (“[B]eing pressured to change

2 state law constitutes an injury.”). And it has had to expend resources to educate City personnel about 3 the contents and mandate of Section 1373.3 Eisenberg Decl. Exh. H; see Nat’l Council of La Raza v.

4 Cegavske, 800 F.3d 1032, 1039-41 (9th Cir. 2015) (determining there was concrete and particularized

5 injury sufficient to confer Article III standing where plaintiffs expended resources to counteract effects

6 of defendants’ behavior).

7

The second category of facts illustrating ripeness is Defendants’ continued insistence that

8 San Francisco does not comply with Section 1373 and must bear a consequence. Attorney General

9 Sessions singled out San Francisco and its “sanctuary policies,” in connection with his March 27

10 announcement that the DOJ will require jurisdictions to comply with Section 1373, including detainer

11 requests, or face a claw-back of their funding and other consequences. Supp. RJN Exh. C. And

12 Representative John Culberson—the self-proclaimed “CFO of the Department of Justice,” who chairs

13 the House of Representatives subcommittee that controls DOJ spending—stated that “it’s [his]

14 responsibility to be judge and jury of when and where federal dollars are allocated,” and that “starting

15 this year” San Francisco and other jurisdictions deemed out of compliance with Section 1373 are “in

16 for a very unpleasant surprise.” Supp. RJN Exh. G at 3-4.

17

These facts are extant. They are not contingent or speculative, and they belie Defendants’

18 conclusory statements that San Francisco cannot show any concrete injury resulting from Section 1373

19 (see, e.g., Opp. at 3), and that its claims are non-justiciable.

20

C. San Francisco’s Claims About The Executive Order Are Justiciable.

21

The same facts establish that San Francisco has standing to challenge Section 9(a) of the

22 Executive Order, and that its claim is constitutionally ripe. Whatever else the Executive Order does, it

23 unquestionably conditions the receipt of at least some federal funds on compliance with Section 1373.

24 And although San Francisco has not yet been officially designated a “sanctuary jurisdiction” under the

25 Executive Order, this does not defeat the Court’s jurisdiction.

26

27

3 Defendants make no mention of many of these facts, and only passing mention of others. See

Opp. at 20 n.6. Their unsupported and conclusory assertion that “these past actions on the part of the

28 plaintiff cannot justify prospective relief against the defendants” (id.) is specious.

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1

Initially, a case may be justiciable before a plaintiff actually suffers an injury, provided that the

2 threatened injury about which a plaintiff complains is “certainly impending” or “inevitable.” Babbitt,

3 442 U.S. at 298-99; Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 69 (1993) (O’Connor, J.,

4 concurring). Such is the case here. If there were any doubt that injury is inevitable because

5 Defendants consider San Francisco a sanctuary jurisdiction, it was eliminated by Attorney General

6 Sessions’ express reference to San Francisco in his March 27 “Remarks on Sanctuary Jurisdictions.” 7 See Supp. RJN Exh. C.4

8

Moreover, it is well settled that “a single factual contingency” does not render a claim

9 “impermissibly speculative.” Coleman, 560 F.3d at 1005. In Coleman—a bankruptcy case in which

10 the individual debtor sought a declaration that her student loan debt was dischargeable—the Ninth

11 Circuit held that the “controversy” was sufficiently “definite and concrete” for Article III purposes,

12 even though it was uncertain whether the debtor would meet the prerequisites for discharge in the first

13 place. Id. Similarly, in Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d

14 1199 (9th Cir. 2006), the Ninth Circuit “concluded that a challenge to the enforceability of a French

15 court injunction was constitutionally ripe even though enforcement of that injunction had yet to be

16 sought.” Coleman, 560 F.3d at 1005 (discussing Yahoo!).

17

Finally, there can be no dispute that the purpose of the Executive Order is to pressure

18 jurisdictions to change their laws.5 This constitutes an injury sufficient to satisfy the Article III case or

19 controversy requirement. See Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015); see also

20 Texas v. United States, 201 F. Supp. 3d 810, 822 (N.D. Tex. 2016); cf. Alfred L. Snapp & Son, Inc. v.

21

22

4 Both the Ninth Circuit and the Supreme Court have found it relevant when a defendant simply refused to confirm that adverse action would not be taken against the plaintiff. See Holder v.

23

Humanitarian Law Project, 561 U.S. 1, 16 (2010) (basing its determination that the claims were justiciable on the fact that “[t]he Government has not argued to this Court that plaintiffs will not be

24

prosecuted if they do what they say they wish to do”); Babbitt v. Farm Workers, 442 US 289, 302 (1979) (“[T]he State has not disavowed any intention of invoking the criminal penalty provision

25

against unions that commit unfair labor practices. . . . In our view, the positions of the parties are sufficiently adverse . . . to present a case or controversy within the jurisdiction of the District Court.”);

26 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1556 (9th Cir. 1989). 5 Indeed, the Executive Order appears to be but one aspect of a multifaceted plan, which also

27 includes increased ICE raids, to coerce jurisdictions into abandoning their sanctuary city laws. See

Maria Santana, Source: ICE is targeting ‘sanctuary cities’ with raids, CNN.com (Mar. 25, 2017, 8:54

28 AM), available at http://www.cnn.com/2017/03/23/politics/sanctuary-city-ice-raids/.

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1 Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982) (explaining that states have a sovereign interest

2 in “the power to create and enforce a legal code”).

3

San Francisco acknowledges—as it did in its Motion (see Mot. at 2 n.1, 5, 10 n.9)—that it is

4 not yet clear which federal funds are at stake under the Executive Order, and that Defendants may

5 ultimately interpret or apply the Order to render some of San Francisco’s specific challenges to the

6 Order inapplicable. Although further factual development may aid the Court’s resolution of these

7 particular arguments, this consideration is relevant only to the prudential—not constitutional—

8 ripeness of these issues. See, e.g., Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010).

9

Unlike Article III standing, prudential standing is discretionary. See Adam Bros. Farming, Inc.

10 v. Cty. of Santa Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010) (“As this case raises only prudential

11 concerns, we have the discretion to waive the requirements of Williamson County, assume that

12 ripeness is met and continue with our analysis.”) (footnote omitted); Grubbs v. Bailes, 445 F.3d 1275,

13 1281 (10th Cir. 2006) (“Questions relating to prudential standing, however, may be pretermitted in

14 favor of a straightforward disposition on the merits.”). And the Supreme Court has questioned the

15 “continuing vitality of the prudential ripeness doctrine” in light of courts’ “virtually unflagging”

16 obligation to “decide cases within [their] jurisdiction.” Susan B. Anthony List v. Driehaus, 134 S. Ct.

17 2334, 2347 (2014); see also U.S. v. JP Morgan Chase Bank Account No. Ending 8215 in Name of

18 Ladislao V. Samaniego, VL: $446,377.36, 835 F.3d 1159, 1167 (9th Cir. 2016) (“The prudential-

19 standing addendum to the Article III standing inquiry has fallen into disfavor in recent years.”). The

20 Court should not reward Defendants’ calculated refusal to clarify the scope of the Executive Order by

21 denying the preliminary relief San Francisco seeks on this discretionary ground.

22 III. San Francisco Will Suffer Irreparable Harm In The Absence Of Injunctive Relief.

23

Defendants argue that San Francisco cannot demonstrate a likelihood of immediate irreparable

24 harm because “a series of future actions must occur before Section 9 [of the Executive Order] or 8

25 U.S.C. § 1373 could have any concrete effect on San Francisco.” Opp. at 12. Not so. Section 1373

26 and the Executive Order are harming San Francisco now in three independent ways.

27

1. Deprivation of Constitutional Rights. There is no dispute that San Francisco is currently

28 required to comply with Section 1373—against its will—and to certify its compliance with the statute

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1 in order to continue receiving DOJ funds. Nor is there any dispute that the Executive Order seeks to

2 force cities to comply with Section 1373. In its Motion, San Francisco explained that being forced to

3 comply with an unconstitutional law constitutes irreparable harm. Mot. at 22-23. The constitutional

4 violation of complying with an invalid Executive Order is as immediate and as irreparable as

5 complying with an invalid statute. In response to this argument, Defendants assert that San Francisco

6 “does not allege a ‘deprivation’ of its ‘constitutional rights’” because it relies primarily on the Tenth

7 Amendment. Defendants claim a violation of the Tenth Amendment cannot be irreparable harm

8 because it implicates a structural, not personal, right. Opp. at 16. This is incorrect for two reasons.

9

First, San Francisco does allege that requiring compliance with Section 1373 impermissibly

10 interferes with its sovereign Tenth Amendment rights. Whether it also has broader benefits for the rest

11 of the nation, the Tenth Amendment protects the rights of San Francisco itself. Defendants

12 misconstrue the Tenth Amendment by casting it as merely “structural.”

13

Further, Defendants propose there exists a hierarchy of constitutional violations, some that

14 constitute irreparable harm and some that do not. Yet, Ninth Circuit case law does not support this

15 position. The Ninth Circuit has repeatedly recognized that “[a]n alleged constitutional infringement

16 will often alone constitute irreparable harm.” Goldie’s Bookstore, Inc. v. Superior Court of State of

17 Cal., 739 F.2d 466, 472 (9th Cir. 1984). More recently, in Associated General Contractors of

18 California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991), the Ninth

19 Circuit reserved the question of whether violations of the Fourteenth Amendment would constitute

20 irreparable injury. Since Associated General Contractors, courts in the Ninth Circuit have found

21 irreparable harm based on violations of the right of interstate migration, (Walsh v. City and Cty. of

22 Honolulu, 423 F. Supp. 2d 1094, 1108 (D. Haw. 2006)) and the Commerce Clause (Am. Trucking

23 Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058 (9th Cir. 2009)).

24

2. Community Harm. Section 1373 and the Executive Order are also causing community

25 injury to San Francisco residents and employees, as evidenced by declarations submitted by the

26 San Francisco Sheriff, the Police Department, and the Department of Public Health in support of this

27 Motion. These declarations describe the immediate and tangible harm the Executive Order has on

28 San Francisco’s ability to serve and protect its residents. Mot. at 24-25. Defendants never rebut or

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1 even address this evidence. See also generally Br. Amicus Curiae Tahirih Justice Ctr. Supp. Pl.’s Mot.

2 Prelim. Inj. 8, ECF No. 41-1.

3

3. Budgetary Harm. The adverse effects of the Executive Order are also being felt today in

4 San Francisco’s budget process. Absent relief from this Court, San Francisco will soon have to place

5 significant money into a budget reserve to account for the potential loss of federal funds. Mot. at 22.

6 Defendants raise several arguments in support of their assertion that this does not constitute irreparable

7 harm. Not one has merit.

8

First, Defendants argue that there is no harm here because “governmental budgeting always

9 suffers from some amount of uncertainty.” Opp. at 14. Some uncertainty is par for the course in

10 government budgeting, but the level of funding cuts threatened by the Executive Order is

11 unprecedented. Further, budgetary uncertainty generally stems from economic factors that are outside

12 anyone’s control and which no one can predict. Here, Defendants control the uncertainty entirely—

13 this is a crisis of Defendants’ own making. They cannot elevate the budget uncertainty to this crisis

14 point and then claim they cause no harm because “some” uncertainty is inherent in the process.

15

Second, Defendants claim that any harm from creating a budget reserve is “‘self-inflicted’

16 harm, which does not constitute irreparable harm for purposes of seeking a preliminary injunction.”

17 Opp. at 15. Defendants rely on the Seventh Circuit’s decision in Second City Music, Inc. v. City of

18 Chicago, 333 F.3d 846 (7th Cir. 2003). But the Seventh Circuit later clarified that “[t]he better

19 understanding of Second City is that the question of whether an injury is readily avoidable and truly

20 self-inflicted if not avoided—and thus not irreparable harm—depends on the particular circumstances

21 of the case.” Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 679 (7th Cir. 2012). Here, creating

22 the budget reserve is not an avoidable choice by San Francisco, but the only fiscally responsible way

23 for the City to attempt to mitigate the potentially “catastrophic” harm created by the Executive Order.

24 Rosenfield Decl. ¶ 36; see also Whitehouse Decl. ¶¶ 8-10, 16-17.

25

Third, Defendants cite Los Angeles Memorial Coliseum Commission v. National Football

26 League, 634 F.2d 1197, 1201 (9th Cir. 1980), for the proposition that budget uncertainty is not a

27 sufficiently real and concrete injury to justify a preliminary injunction. Opp. at 14. The case does not

28 stand for this proposition. There, the Coliseum secured an injunction blocking enforcement of a

CCSF’s Reply ISO Mtn for Prelim. Injunction; Case No. 17-00485

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1 provision of the National Football League’s Constitution and Bylaws, which the Court of Appeal

2 reversed, finding the mere speculations of three individuals insufficient to establish a significant threat

3 of injury. L.A. Memorial Coliseum Commission, 634 F.2d at 1201. Here, San Francisco has submitted

4 evidence, not conjecture, showing that the uncertainty created by Defendants’ actions is causing real

5 harm to San Francisco and its residents.

6

Fourth, Defendants contend that the Executive Order cannot cause San Francisco harm because

7 it does not expand existing law and simply restates jurisdictions’ existing obligation to comply with

8 Section 1373. Opp. at 15. But Defendants’ statements in this regard are misleading, unsupported by

9 evidence, and inconsistent with Defendants’ other public statements. See Part I, supra.

10

Finally, Defendants blithely argue that this is a “mere economic injury,” which does not

11 constitute irreparable harm. Opp. at 15-16. But the injury caused by creating a budget reserve is not

12 “mere[ly] economic.” Money placed in the reserve will not be available for other services.

13 Whitehouse Decl. ¶ 10. This means that San Francisco will not be able to fund other priorities such as

14 reducing homelessness in San Francisco through family shelter expansions, youth housing subsidies, a

15 resource center, and homeless shelter maintenance and security. Id. ¶ 14. Where an economic injury

16 impacts government’s ability to provide critical resources to the public, there is immediate and

17 irreparable harm. See, e.g., United States v. North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C.

18 2016) (finding irreparable harm where the unavailability of federal funds was “likely to have an

19 immediate impact on [the state’s] ability to provide critical resources to the public, causing damage

20 that would persist regardless of whether funding [was] subsequently reinstated”).

21 IV. The Balance Of Equities And Public Interest Favor A Preliminary Injunction.

22

Defendants and San Francisco agree that in cases against the federal government, the balance

23 of equities and public interest factors merge. See Mot. at 25; Opp. at 21. But they disagree about

24 which party these merged factors favor here. Defendants cite cases stating that “compliance with the

25 law” is generally a factor in the public interest, but there is no public interest in requiring compliance

26 with an unconstitutional law. To the contrary, “by establishing a likelihood” of a constitutional

27 violation, “Plaintiffs have also established that both the public interest and the balance of the equities

28 favor a preliminary injunction.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir.

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1 2014); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (finding that “it is always in

2 the public interest to prevent the violation of a party’s constitutional rights”) (internal quotation marks

3 and citation omitted).

4

This analysis applies both to San Francisco’s claims against Section 1373 and its claims

5 against the Executive Order. According to Defendants, “Section 9 of the Order is meant simply to

6 ‘ensure’ compliance with [Section 1373].” Opp. at 21. Thus, if Section 1373 is unconstitutional, the

7 Executive Order serves merely to enforce an unconstitutional statute. There is no public interest in

8 allowing an unconstitutional Executive Order to stand. And indeed, the Executive Order will continue

9 to cause significant harms—and to unconstitutionally coerce local jurisdictions—until it is enjoined.

10 V. The Scope Of Injunctive Relief Sought By San Francisco Is Appropriate.

11

A. Nationwide Injunctive Relief Is Warranted.

12

Because the Executive Order and Section 1373 apply nationwide, the Court should issue a

13 nationwide injunction.6 “[T]he scope of injunctive relief is dictated by the extent of the violation

14 established, not by the geographical extent of the plaintiff.” Califano v. Yamasaki, 442 U.S. 682, 702

15 (1979). If this Court determines that San Francisco is likely to succeed in establishing the

16 unconstitutionality of Section 1373 and the Executive Order, this Court can protect the nation from

17 those unconstitutional exercises of power.

18

Defendants claim that “courts routinely deny requests for nationwide injunctive relief” (Opp. at

19 22), but the few examples on which Defendants rely do not support such a proposition here. United

20 States Department of Defense v. Meinhold contained no reasoning and merely entered a stay to limit

21 the injunction’s scope to the plaintiff pending appeal. 510 U.S. 939 (1993). On appeal, the Ninth

22 Circuit explained that a limited injunction was appropriate because the action was “not a class action.

23 Meinhold sought only to have his discharge voided and to be reinstated.” Meinhold v. U.S. Dep’t of 24 Def., 34 F.3d 1469, 1480 (9th Cir. 1994) (emphasis added).7 Likewise, Skydive Arizona, Inc. v.

25

6 If the Court grants preliminary relief only as to San Francisco’s claim that it complies with

26 Section 1373, that relief would not, of course, require a nationwide injunction.

7 While Meinhold concerned matters of military judgment, which are “not lightly to be 27 overruled by the judiciary” (34 F.3d at 1476), San Francisco seeks to protect its ability to determine

how to best deploy municipal law enforcement resources, an area where the executive receives no 28

CCSF’s Reply ISO Mtn for Prelim. Injunction; Case No. 17-00485

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1 Quattrocchi, 673 F.3d 1105 (9th Cir. 2012), lends no support to Defendants, as it merely reinforces

2 that a lower court does not abuse its discretion when it issues an injunction limited to the geographic

3 scope of the facts.

4

Meanwhile, courts have repeatedly entered nationwide relief when a city or state challenges a

5 federal law or executive order. See Washington v. Trump, 847 F.3d 1151, 1166-67 (9th Cir. 2017)

6 (affirming nationwide injunction against travel ban executive order); Texas v. United States, 809 F.3d

7 134, 187-88 (5th Cir. 2015); Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987). Here, Section

8 1373 violates the Tenth Amendment, as does the Executive Order. The violations affect cities and

9 counties across the country. To cabin injunctive remedies to San Francisco’s geographic boundaries

10 would minimize the scope and breadth of the violations.

11

B. An Injunction Against The President Is Warranted.

12

Defendants argue that even if an injunction is warranted, the Court should not issue an

13 injunction against the President. Defendants are correct that a “grant of injunctive relief against the

14 President himself is extraordinary,” but it is not strictly prohibited. Franklin v. Massachusetts, 505

15 U.S. 788, 802 (1992) (plurality opinion). There is no question that Courts may review the

16 constitutionality of executive action and issue appropriate relief. See, e.g., Youngstown Sheet & Tube

17 Co. v. Sawyer, 343 U.S. 579, 582 (1952); Panama Ref. Co. v. Ryan, 293 U.S. 388, 433 (1935);

18 Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *17 (D. Haw. Mar. 15, 2017);

19 Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *2 (W.D. Wash. Feb. 3, 2017). In this

20 case, the Court has discretion to determine whether the constitutional violations in the Executive Order

21 may be remedied by an injunction against the named inferior officers, or whether this is an

22 extraordinary circumstance where injunctive relief against the President himself is warranted.

23

CONCLUSION

24

For the foregoing reasons, San Francisco requests that this Court grant the relief requested.

25

26 deference—indeed, where the balance tilts the other way: in favor of the inherent sovereignty of states
27 and their localities. Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1991); see also Bond v. United States, 134 S. Ct. 2077, 2081 (2014) (requiring a clear statement from Congress to interfere with state
28 sovereignty).

CCSF’s Reply ISO Mtn for Prelim. Injunction; Case No. 17-00485

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1 Dated: March 29, 2017

2

DENNIS J. HERRERA

City Attorney

3

RONALD FLYNN

4

JESSE C. SMITH YVONNE R. MERÉ

5

CHRISTINE VAN AKEN TARA STEELEY

6

MOLLIE M. LEE SARA J. EISENBERG

7

MATTHEW S. LEE NEHA GUPTA

8

Deputy City Attorneys

9

By: /s/ Sara J. Eisenberg SARA J. EISENBERG

10

Deputy City Attorney

11

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
CCSF’s Reply ISO Mtn for Prelim. Injunction; Case No. 17-00485

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N:\CXLIT\LI2017\171027\01181325.docx

 
 Case 3:17-cv-00485-WHO Document 61 Filed 03/29/17 Page 1 of 4

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

18 FRANCISCO,

SUPPLEMENTAL REQUEST FOR JUDICIAL

19

Plaintiff,

NOTICE IN SUPPORT OF CITY AND

COUNTY OF SAN FRANCISCO’S MOTION

20

vs.

FOR PRELIMINARY INJUNCTION

21 DONALD J. TRUMP, President of the United

States, UNITED STATES OF AMERICA,

Date:

22 JOHN F. KELLY, Secretary of United States Time:

Department of Homeland Security,

Judge:

23 JEFFERSON B. SESSIONS III, Attorney

Dept:

General of the United States, DOES 1-100,

24

Date Filed:

Defendants.

25

Trial Date:

April 14, 2017 2:00 p.m. Honorable William H. Orrick Courtroom 2
January 31, 2017
Not yet set

26

27

28
Supp. RJN ISO CCSF’s Mtn for Prelim. Inj.; Case No. 17-00485

Case 3:17-cv-00485-WHO Document 61 Filed 03/29/17 Page 2 of 4

1

2

REQUEST FOR JUDICIAL NOTICE

3

Plaintiff City and County of San Francisco hereby respectfully requests, pursuant to Federal

4 Rule of Evidence 201, that this Court take judicial notice of the following documents.

5

1. Attached hereto as Exhibit A is a true and correct copy of the U.S. Immigration and

6 Customs Enforcement Policy No. 10074.2, entitled “Issuance of Immigration Detainers by ICE

7 Immigration Officers” and issued on March 24, 2017. This policy is posted on the U.S. Immigration

8 and Customers Enforcement official website, at

9 https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf.

10

2. Attached hereto as Exhibit B is a true and correct copy of Form I-247A issued by the

11 Department of Homeland Security and entitled “Immigration Detainer-Notice of Action.” This form

12 is posted on the U.S. Immigration and Customers Enforcement official website, at

13 https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

14

3. Attached hereto as Exhibit C is a true and correct copy of the Department of Justice’s

15 press release dated March 27, 2017 and titled “Attorney General Jeff Sessions Delivers Remarks on

16 Sanctuary Jurisdictions.” This press release is posted on the U.S. Department of Justice official

17 website, at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-

18 sanctuary-jurisdictions.

19

4. Attached hereto as Exhibit D is a true and correct copy of Whitehouse.Gov’s press

20 release dated March 27, 2017 and titled “Press Briefing by Press Secretary Sean Spicer, 3/27/2017,

21 #29.” This press release is posted on Whitehouse.Gov’s website, at https://www.whitehouse.gov/the-

22 press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272017-29.

23

5. Attached hereto as Exhibit E is a true and correct copy of a letter sent by

24 Daniel H. Ragsdale, the Acting Director of the United States Department of Homeland Security, to

25 Representative Mike Thompson on February 25, 2014.

26

6. Attached hereto as Exhibit F is a true and correct copy of the Brief of the United States

27 as Amicus Curiae in Support of Neither Party, filed before the Commonwealth of Massachusetts

28

Supp. RJN ISO CCSF’s Mtn for Prelim. Inj.;

1

Case No. 17-00485

Case 3:17-cv-00485-WHO Document 61 Filed 03/29/17 Page 3 of 4

1 Supreme Judicial Court in the case of the Commonwealth of Massachusetts v. Sreynuon Lunn, Case

2 Number No. SJC-12276.

3

7. Attached hereto as Exhibit G is a true and correct of an article titled “Did Culberson

4 Misfire when he took a shot at ‘sanctuary city’ funds?” This articled was posted on

5 Houstonchronicle.com’s website on March 18, 2017, updated March 19, 2017,

6 at http://www.houstonchronicle.com/news/houston-texas/houston/article/Did-Culberson-misfire-when-

7 he-took-a-shot-at-11011942.php.

8

8. Attached hereto as Exhibit H is a true and correct copy of the “Weekly Declined

9 Detainer Outcome Report” issued by the Department of Homeland Security, U.S. Immigration and

10 Customs Enforcement (“ICE”). This press release is posted on the ICE website, at

11 https://www.ice.gov/doclib/ddor/ddor2017_02-04to02-10.pdf.

12

Each of these exhibits is a matter of public record and is therefore subject to judicial notice.

13 Fed. R. Evid. § 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (a court may

14 judicially notice matters of public record unless the matter is a fact subject to reasonable dispute).

15

Exhibits A, B, C, D, E, and H are judicially noticeable because government memoranda,

16 bulletins, letters, statements and opinions are matters of public record appropriate for judicial notice.

17 See Brown v. Valoff, 422 F.3d 926, 933 n.9 (9th Cir. 2005) (judicially noticing an administrative

18 bulletin); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take

19 judicial notice of records and reports of state administrative bodies), overruled on other grounds by

20 Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 (1991); Interstate Nat. Gas. Co. v.

21 S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953) (judicially noticing government agency records

22 and reports).

23

Exhibits A, B, C, D, and H are also judicially noticeable because they are posted to official

24 government websites. See Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010)

25 (judicially noticing information contained on a government website); Paralyzed Veterans of America

26 v. McPherson, No. C 06–4670 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (finding that

27 courts commonly take judicial notice of information and documents on government websites, and

28 citing cases from various jurisdictions).

Supp. RJN ISO CCSF’s Mtn for Prelim. Inj.;

2

Case No. 17-00485

Case 3:17-cv-00485-WHO Document 61 Filed 03/29/17 Page 4 of 4

1

Exhibit F is judicially noticeable because it is a court record from a proceeding that raises

2 issues relevant to this litigation. U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

3 971 F.2d 244, 248 (9th Cir. 1992) (holding that a court “may take notice of proceedings in other

4 courts, both within and without the federal judicial system, if those proceedings have a direct relation

5 to matters at issue.”)

6

Exhibit G is judicially noticeable because the statements of governmental officials contained

7 within Exhibit G are not subject to reasonable dispute because the statements “can be accurately and

8 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

9 § 201(b)(2).

10 Dated: March 29, 2017

11

DENNIS J. HERRERA

12

City Attorney RONALD FLYNN

13

JESSE C. SMITH YVONNE R. MERÉ

14

CHRISTINE VAN AKEN TARA STEELEY

15

MOLLIE M. LEE SARA J. EISENBERG

16

MATTHEW S. LEE NEHA GUPTA

17

18

By: /s/ Sara J. Eisenberg SARA J. EISENBERG

19

Deputy City Attorney

20

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

21

22

23

24

25

26

27

28

Supp. RJN ISO CCSF’s Mtn for Prelim. Inj.;

3

Case No. 17-00485

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 1 of 7
EXHIBIT A

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 2 of 7

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 3 of 7

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 4 of 7

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 5 of 7

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 6 of 7

Case 3:17-cv-00485-WHO Document 61-1 Filed 03/29/17 Page 7 of 7

Case 3:17-cv-00485-WHO Document 61-2 Filed 03/29/17 Page 1 of 4
EXHIBIT B

Case 3:17-cv-0D0E4P8A5R-TWMHENOT ODFoHcOuMmEeLnAtN6D1-S2ECFURileITdY0(3D/H2S9)/17 Page 2 of 4 IMMIGRATION DETAINER – NOTICE OF ACTION

Subject ID: Event #:

File No: Date:

TO: (Name and Title of Institution - OR Any Subsequent Law Enforcement Agency)

FROM: (DHS Office Address)

Name of Alien: ______________________________________________________________________________

Date of Birth: ____________________ Citizenship: __________________________ Sex: _____________________
1. DHS HAS DETERMINED THAT PROBABLE CAUSE EXISTS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON (complete box 1 or 2): a final order of removal against the alien; the pendency of ongoing removal proceedings against the alien; biometric confirmation of the alien’s identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law; and/or statements made by the alien to an immigration officer and/or other reliable evidence that affirmatively indicate the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.
2. DHS TRANSFERRED THE ALIEN TO YOUR CUSTODY FOR A PROCEEDING OR INVESTIGATION (complete box 1 or 2). Upon completion of the proceeding or investigation for which the alien was transferred to your custody, DHS intends to resume
E custody of the alien to complete processing and/or make an admissibility determination.
IT IS THEREFORE REQUESTED THAT YOU:
L • Notify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from your custody. Please notify
DHS by calling □ U.S. Immigration and Customs Enforcement (ICE) or □ U.S. Customs and Border Protection (CBP) at
P _________________________________________________. If you cannot reach an official at the number(s) provided, please contact the
Law Enforcement Support Center at: (802) 872-6020.
• Maintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have been released from your custody to allow DHS to assume custody. The alien must be served with a copy of this form for the detainer
M to take effect. This detainer arises from DHS authorities and should not impact decisions about the alien’s bail, rehabilitation, parole,
release, diversion, custody classification, work, quarter assignments, or other matters.
• If the alien is transferred to another law enforcement agency, this detainer is to be relayed to the new agency with custody of the alien.
A • Notify this office in the event of the alien’s death, hospitalization or transfer to another institution. □ S If checked: Please cancel the detainer related to this alien previously submitted to you on _____________ (date).

(Name and title of Immigration Officer)

(Signature of Immigration Officer)

Notice: If the alien may be the victim of a crime or you want the alien to remain in the United States for a law enforcement purpose, notify the ICE Law Enforcement Support Center at (802) 872-6020. You may also call this number if you have any other questions or concerns about this matter.

TO BE COMPLETED BY THE LAW ENFORCEMENT AGENCY CURRENTLY HOLDING THE ALIEN WHO IS THE SUBJECT OF THIS NOTICE: Please provide the information below, sign, and return to DHS by mailing, emailing, or faxing a copy to _________________________.
Local Booking/Inmate #: ____________ Est. release date/time: _____________ Date of latest criminal charge/conviction: __________
Latest offense charged/convicted: ________________________________________________________________________________

This form was served upon the alien on _____________________, in the following manner:

 in person

 by inmate mail delivery

 other (please specify): ______________________________________.

(Name and title of Officer) DHS Form I-247A (02/17)

(Signature of Officer)

Page 1 of 3

Case 3:17-cv-00485-WHO Document 61-2 Filed 03/29/17 Page 3 of 4
NOTICE TO THE DETAINEE The Department of Homeland Security (DHS) has placed an immigration detainer on you. An immigration detainer is a notice to a law enforcement agency that DHS intends to assume custody of you ( after you otherwise would be released from custody) because there is probable cause that you are subject to removal from the United States under federal immigration law. DHS has requested that the law enforcement agency that is currently detaining you maintain custody of you for a period not to exceed 48 hours beyond the time when you would have been released based on your criminal charges or convictions. If DHS does not take you into custody during this additional 48 hour period, you should contact your custodian (the agency that is holding you now) to inquire about your release. If you believe you are a United States citizen or the victim of a crime, please advise DHS by calling the ICE Law Enforcement Support Center toll free at (855) 448-6903.
NOTIFICACIÓN A LA PERSONA DETENIDA El Departamento de Seguridad Nacional (DHS) de EE. UU. ha emitido una orden de detención inmigratoria en su contra. Mediante esta orden, se notifica a los organismos policiales que el DHS pretende arrestarlo cuando usted cumpla su reclusión actual. El DHS ha solicitado que el organismo policial local o estatal a cargo de su actual detención lo mantenga en custodia por un período no mayor a 48 horas (excluyendo sábados, domingos y días festivos) tras el cese de su reclusión penal. Si el DHS no procede con su arresto inmigratorio durante este período adicional de 48 horas, usted debe comunicarse con la autoridad estatal o local que lo tiene detenido (el organismo policial u otra entidad a cargo de su custodia actual) para obtener mayores detalles sobre el cese de su reclusión. Si usted cree que es ciudadano de los Estados Unidos o que ha sido víctima de un delito, infórmeselo al DHS llamando al Centro de Apoyo a los Organismos Policiales (Law Enforcement Support Center) del ICE, teléfono (855) 448-6903 (llamada gratuita).
E Avis au détenu
Le département de la Sécurité Intérieure [Department of Homeland Security (DHS)] a émis, à votre encontre, un ordre d'incarcération pour des raisons d'immigration. Un ordre d'incarcération pour des raisons d'immigration est un avis du DHS informant les agences des
L forces de l'ordre que le DHS a l'intention de vous détenir après la date normale de votre remise en liberté. Le DHS a requis que
l'agence des forces de l'ordre, qui vous détient actuellement, vous garde en détention pour une période maximum de 48 heures au-delà de la période à la fin de laquelle vous auriez été remis en liberté par les autorités policières de l'État ou locales en fonction des inculpations ou condamnations pénales à votre encontre. Si le DHS ne vous détient pas durant cette période supplémentaire de
P 48 heures, sans compter les fins de semaines et les jours fériés, vous devez contacter votre gardien (l'agence des forces de
l'ordre qui vous détient actuellement) pour vous renseigner à propos de votre libération par l'État ou l'autorité locale. Si vous croyez être un citoyen des États-Unis ou la victime d'un crime, veuillez en aviser le DHS en appelant le centre d'assistance des forces de l'ordre de l'ICE [ICE Law Enforcement Support Center] au numéro gratuit (855) 448-6903.
MAVISO AO DETENTO A O Departamento de Segurança Nacional (DHS) emitiu uma ordem de custódia imigratória em seu nome. Este documento é um aviso
enviado às agências de imposição da lei de que o DHS pretende assumir a custódia da sua pessoa, caso seja liberado. O DHS pediu que a agência de imposição da lei encarregada da sua atual detenção mantenha-o sob custódia durante, no máximo, 48 horas após o
S período em que seria liberado pelas autoridades estaduais ou municipais de imposição da lei, de acordo com as respectivas
acusações e penas criminais. Se o DHS não assumir a sua custódia durante essas 48 horas adicionais, excluindo-se os fins de semana e feriados, você deverá entrar em contato com o seu custodiante (a agência de imposição da lei ou qualquer outra entidade que esteja detendo-o no momento) para obter informações sobre sua liberação da custódia estadual ou municipal. Se você acreditar que é um cidadão dos EUA ou está sendo vítima de um crime, informe o DHS ligando para o Centro de Apoio à Imposição da Lei do ICE pelo telefone de ligação gratuita (855) 448-6903

DHS Form I-247A (02/17)

Page 2 of 3

Case 3:17-cv-00485-WHO Document 61-2 Filed 03/29/17 Page 4 of 4
THÔNG BÁO CHO NGƯỜI BỊ GIAM GIỮ
Bộ Quốc Phòng (DHS) đã có lệnh giam giữ quý vị vì lý do di trú. Lệnh giam giữ vì lý do di trú là thông báo của DHS cho các cơ quan thi hành luật pháp là DHS có ý định tạm giữ quý vị sau khi quý vị được thả. DHS đã yêu cầu cơ quan thi hành luật pháp hiện đang giữ quý vị phải tiếp tục tạm giữ quý vị trong không quá 48 giờ đồng hồ ngoài thời gian mà lẽ ra quý vị sẽ được cơ quan thi hành luật pháp của tiểu bang hoặc địa phương thả ra dựa trên các bản án và tội hình sự của quý vị. Nếu DHS không tạm giam quý vị trong thời gian 48 giờ bổ sung đó, không tính các ngày cuối tuần hoặc ngày lễ, quý vị nên liên lạc với bên giam giữ quý vị (cơ quan thi hành luật pháp hoặc tổ chức khác hiện đang giam giữ quý vị) để hỏi về việc cơ quan địa phương hoặc liên bang thả quý vị ra. Nếu quý vị tin rằng quý vị là công dân Hoa Kỳ hoặc nạn nhân tội phạm, vui lòng báo cho DHS biết bằng cách gọi ICE Law Enforcement Support Center tại số điện thoại miễn phí (855) 448-6903.
SAMPLE

DHS Form I-247A (02/17)

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Case 3:17-cv-00485-WHO Document 61-3 Filed 03/29/17 Page 1 of 3
EXHIBIT C

Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions | OPA | Department of Justice Page 1 of 2 Case 3:17-cv-00485-WHO Document 61-3 Filed 03/29/17 Page 2 of 3
JUSTICE NEWS
Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions
Monday, March 27, 2017
Good afternoon. The Department of Justice has a duty to enforce our nation’s laws, including our immigration laws. Those laws require us to promptly remove aliens when they are convicted of certain crimes.
The vast majority of the American people support this common-sense requirement. According to one recent poll, 80 percent of Americans believe that cities that arrest illegal immigrants for crimes should be required to turn them over to immigration authorities.
Unfortunately, some states and cities have adopted policies designed to frustrate the enforcement of our immigration laws. This includes refusing to detain known felons under federal detainer requests, or otherwise failing to comply with these laws. For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor Immigration and Customs Enforcement (ICE) detainer requests with respect to individuals charged or convicted of a serious crime. The charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child and even murder.
Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on our streets.
We all remember the tragic case of Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.
Just eleven weeks before the shooting, San Francisco had released Sanchez from its custody, even though ICE had filed a detainer requesting that he be kept in custody until immigration authorities could pick him up for removal. Even worse, Sanchez admitted that the only reason he came to San Francisco was because of its sanctuary policies.
A similar story unfolded just last week, when Ever Valles, an illegal immigrant and Mexican national, was charged with murder and robbery of a man at a light rail station. Valles was released from a Denver jail in late December, despite the fact that ICE had lodged a detainer for his removal.
The American people are justifiably angry. They know that when cities and states refuse to help enforce immigration laws, our nation is less safe. Failure to deport aliens who are convicted for criminal offenses puts whole communities at risk – especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.
DUIs, assaults, burglaries, drug crimes, gang crimes, rapes, crimes against children and murders. Countless Americans would be alive today – and countless loved ones would not be grieving today – if the policies of these sanctuary jurisdictions were ended.
Not only do these policies endanger the lives of every American; just last May, the Department of Justice Inspector General found that these policies also violate federal law.
The President has rightly said that this disregard for the law must end. In his executive order, he stated that it is the policy of the executive branch to ensure that states and cities comply with all federal laws, including our immigration laws.
The order also states that “the Attorney General and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply” with the law “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-jurisdictions 3/28/2017

Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions | OPA | Department of Justice Page 2 of 2 Today I am urgingCaalsl seta3te:1s 7an-cdvlo-0ca0l4ju8r5is-dWictHionOs toDcoomcuplmy wenitht a6l1l f-e3derFalilleawds0, i3n/c2lu9d/i1ng78 UP.aSg.Ce. S3eoctfio3n 1373.
Moreover, the Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance with Section 1373 as a condition for receiving these awards.
This policy is entirely consistent with the Department of Justice’s Office of Justice Programs (OJP) guidance issued last July under the previous administration. This guidance requires state and local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants. It also made clear that failure to remedy violations could result in withholding of grants, termination of grants, and disbarment or ineligibility for future grants.
The Department of Justice will also take all lawful steps to claw-back any funds awarded to a jurisdiction that willfully violates Section 1373.
In the current fiscal year, department’s OJP and Community Oriented Policing Services anticipate awarding more than $4.1 billion dollars in grants.
I urge our nation’s states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to re-think these policies. Such policies make their cities and states less safe, and put them at risk of losing valuable federal dollars.
The American people want and deserve a lawful immigration system that keeps us safe and serves our national interest. This expectation is reasonable, and our government has a duty to meet it. And we will meet it.

Speaker: Attorney General Jeff Sessions

Office of the Attorney General Updated March 28, 2017

https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-jurisdictions 3/28/2017

Case 3:17-cv-00485-WHO Document 61-4 Filed 03/29/17 Page 1 of 28
EXHIBIT D

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov Case 3:17-cv-00485-WHO Document 61-4 Filed 03/29/17 Page 2 of 28
the WHITE HOUSE PRESIDENT DONALD J. TRUMP

Page 1 of 27

From the Press Office
Speeches & Remarks Press Briefings Statements & Releases Nominations & Appointments Presidential Actions Legislation Disclosures

The White House Office of the Press Secretary
For Immediate Release

SHARE
March 27, 2017 THIS:

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29

T¬WITTER FA­CEBOOK
EMâAIL

James S. Brady Briefing Room

1:34 P.M. EDT
MR. SPICER: Hi, guys. Good afternoon. I hope everyone had a great weekend, seriously. It's Monday, so I brought a special guest.
First, I'd like to have the Attorney General come up to the podium to make an announcement regarding immigration enforcement with respect to sanctuary cities. When the Attorney General is done speaking, we'll have time for a couple questions and then I'll continue with the briefing. So if your question is not germane to sanctuary cities, keep your hand down and we'll get to it after we go through the events of the day.
So, with that, Attorney General Sessions, come on up.

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov ATTORNEY GENECRaAsLeS3E:S1S7I-OcNv-S0:0T4h8a5n-Wk yHoOu, SDeaonc.uTmheenDt e6p1a-4rtmFeinletdof0J3u/2st9i/c1e7haPs aagveie3wotof 28 enforce our nation's laws, including our immigration laws. Those laws require us to promptly remove aliens when they are convicted or detained of certain crimes. The vast majority of American people support this commonsense requirement. According to one recent poll, 80 percent of Americans believe that cities that arrest illegal immigrants for crimes should be required to turn them over to immigration authorities. Unfortunately, some states and cities have adopted policies designed to frustrate this enforcement of immigration laws. This includes refusing to detain known felons on the federal detainer request, or otherwise failing to comply with these laws.
For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime. The charges and convictions against these aliens included drug-trafficking, hit-and-run, rape, sex offenses against a child, and even murder. Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the streets. We all remember the tragic case of Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.
Just 11 weeks before the shooting, San Francisco had released Sanchez from its custody, even though Immigration and Customs Enforcement officers had filed a detainer requesting that he be held in custody until immigration authorities could pick him up for removal. Even worse, Sanchez admitted the only reason he came to San Francisco was because it was a sanctuary city.
A similar story unfolded just last week, when Ever Valles, an illegal immigrant and a Mexican national was charged with murder and robbery of a man at a light rail station. Valles was released from a Denver jail in late December, despite the fact that ICE has lodged a detainer for his removal.
The American people are not happy with these results. They know that when cities and states refuse to help enforce immigration laws, our nation is less safe. Failure to deport aliens who are convicted of criminal offenses puts whole communities at risk, especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.
DUIs, assaults, burglaries, drug crimes, gang rapes, crimes against children, and murderers -countless Americans would be alive today and countless loved ones would not be grieving today if these policies of sanctuary cities were ended. Not only do these policies endanger lives of every American -- just last May, the Department of Justice inspector general found that these policies also violate federal law.

Page 2 of 27

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov The President haCsarsigeh3tl:y1s7a-cidv,-0d0is4re8g5a-WrdHfoOr thDeolacwummeunstt6e1n-d4. InFihleisde0x3e/c2u9t/i1ve7 orPdaegr,eh4e sotfa2te8d that it is the policy of the executive branch to ensure that states and cities comply with all federal laws, including all immigration laws.

Page 3 of 27

Today, I'm urging states and local jurisdictions to comply with these federal laws, including 8 U.S.C. Section 1373. Moreover, the Department of Justice will require that jurisdictions seeking or applying for Department of Justice grants to certify compliance with 1373 as a condition of receiving those awards.

This policy is entirely consistent with the Department of Justice's Office of Justice Program's guidance that was issued just last summer under the previous administration. This guidance requires state and local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants.

It also made clear that failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants.

The Department of Justice will also take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates 1373. In the current fiscal year, the Department of Justice's Office of Justice Program and Community Oriented Policing services anticipates awarding more than $4.1 billion in grants.

I strongly urge our nation's states and cities and counties to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to rethink these policies. Such policies make their cities and states less safe -- public safety, as well as national security, are at stake -- and put them at risk of losing federal dollars.

The American people want and deserve a lawful system of immigration that keeps us safe, and one that serves the national interest. This expectation is reasonable, just, and our government has the duty to meet it, and we will meet it.

Thank you.

Q In Montgomery County, right up the road, there was a rape in Maryland at Rockville High School. Has anyone from the Department of Justice had any conversations with anyone in Montgomery County or Rockville, as they describe themselves as a sanctuary county and city? And there's also a boatload of federal government in Montgomery County.

ATTORNEY GENERAL SESSIONS: Well, you know, Maryland is talking about a state law to make the state a sanctuary state. The governor is opposed to that, I'm glad to hear. That would be such a mistake. I would plead with the people of Maryland to understand that this makes the state of Maryland more at risk for violence and crime. It is not good policy. And as a former prosecutor for many years in state and federal law in jurisdictions, I just know the historic relationship different federal agencies have with regard to honoring detainers. It's just a

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov fundamental priCncaispele3o:1f l7a-wcve-n0f0o4r8ce5m-WenHtOthaDt oifcyuomuehnatv6e1a-4perFsoilendar0r3e/s2te9d/1,7andPaangoeth5eorf 28 jurisdiction has a charge, then they file a detainer. And when you finish with the prisoner, you turn them over to the next jurisdiction for their adjudication. That is why it should be done --
MR. SPICER: Major.
Q Mr. Attorney General, so listening to you carefully, it sounds like you're applying the standards and the policy that the Obama administration put forward on compliance with underlying Justice Department rules. Are you taking any additional steps? And have you asked the President to maybe talk about other federal funds that are not necessarily under your control as a way to punish sanctuary cities or states?
ATTORNEY GENERAL SESSIONS: Well, that's a good question. What I'm saying today is that essentially the policies of the Obama administration that were issued last July make clear that you should not be receiving certain federal funds if you're not in compliance with 1373. We believe that grants in the future could be issued that have additional requirements, as every grant that's being issued in America today usually has a requirement that if you qualify for this grant, you have to meet certain requirements. So we'll be looking at that in the future, and we'll continue to pursue it. But fundamentally we intend to use all the lawful authority we have to make sure that our state and local officials, who are so important to law enforcement, are in sync with the federal government.
Q Some officials in cities, for example -- bigger cities -- have said, despite the lack of federal funding, they will continue to be sanctuary cities; that they don’t care that they're losing money, essentially. What recourse does the Department of Justice have in those cities that look at what you're doing and say, we don’t care, we're going to continue to implement this policy?
ATTORNEY GENERAL SESSIONS: Well, that's very disheartening, but I hope that the American people and their constituents in their own cities will communicate with them. And as we continue a dialogue and a discussion, and as we continue to ensure that monies that go for law enforcement only go to cities who are participating in an effective, collegial, cooperative way with the federal government, that that would also send a message. We have simply got to end this policy. Thank you all.
MR. SPICER: Okay. You guys ready to continue?
Q Yes.
MR. SPICER: Good. Before I get into today's schedule, I wanted to read -- I know there's been some interest in the State Department's statement regarding the arrest of hundreds of protestors -- peaceful protestors -- that occurred in Russia.
The statement that the State Department put out says:

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https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov "The United StatCeasssetro3n:1g7ly-ccvo-n0d0e4m85n-sWthHeOdetDeonctiuomn eonf thu6n1d-4redFsiloefdp0e3a/c2e9fu/1l 7proPteasgteor6s of 28 throughout Russia on Sunday. The detention of peaceful protestors, human rights observers, and journalists is an affront to essential democratic values. We are troubled to hear of the arrest of the opposition leader upon arrival at the demonstration, as well as the police raids on the anti-corruption organization he heads. The United States will monitor the situation, and we call on the government of Russia to immediately release all peaceful protestors. The Russian people, like people everywhere, deserve a government that supports an open marketplace of ideas, transparent and accountable governance, equal treatment under the law, and the ability to exercise their rights without fear of retribution."

Page 5 of 27

Now, with respect to events for the day, this morning, after receiving his daily intelligence briefing, the President participated in a roundtable with women small business owners. The President is hosting a group of women business owners as part of the White House's full calendar of Women’s History Month events.

At the roundtable this morning, Vice President Pence, SBA Administrator McMahon joined with other senior administration officials to hear from these amazing female entrepreneurs and small business leaders about their firsthand experiences, successes, and challenges. As the President said, “Empowering and promoting women in business is an absolute priority in the Trump administration because I know how crucial women are as job-creators, role models, and leaders all throughout our communities.

The women in attendance this morning have incredible stories, including many who have started businesses from scratch with very limited resources, and, through hard work and determination, turned their dreams into reality. Between them, they provide hundreds of jobs to Americans across the country. The President is dedicated to continuing to remove the unique barriers that women face in our economy, including access to capital, markets, and networks. This administration will continue to advocate for policies that support working family, including a national initiative to promote women business leaders and entrepreneurs that his daughter, Ivanka, is helping to lead.

In honor of Women’s History Month, the White House has been hosting events all throughout March. Just to name a few, the Centers for Medicaid and Medicare Systems Administrator Verma held a roundtable with Women in Healthcare, which the President attended. The First Lady held a Women’s Empowerment lunch on International Women’s Day. Earlier this month, Second Lady Karen Pence joined women from all five military branches for lunch at Fort Meade, and last week hosted military women at the Vice President’s residence to thank them for their service. Under President Trump, the American economy is a place for everyone, regardless of their gender, to thrive.

Following the roundtable, the President had lunch with the Vice President and Secretary of State Tillerson. And at three o'clock, the President will sign House Joint Resolutions 37, 44, 57, and 58 -- all of which use the powers of the Congressional Review Act to roll back job-killing

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov rules. Before thiCs aasdem3in:1is7tr-cavti-o0n0,4o8n5ly-WonHeOtimDeoicnutmheennat t6io1n-4’s hFisilteodry0h3a/2d9a/1P7resPidaegnet 7evoefr28 signed a bill that used the Congressional Review Act to cancel a federal regulation. In just his first 66 days as President, he will have signed six resolutions to eliminate unnecessary and burdensome rules.

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House Joint Resolution 37 rolls back the so-called “blacklisting” rule, which manufacturers identified during their meeting with the President as one of the most significant threats to growing American businesses and hiring more American workers. The rule simply made it too easy for trial lawyers to go after American companies and American workers who contract with the federal government. The President saw that workers, taxpayers, and businesses were the ones who truly suffered under this rule, and he is glad to be signing legislation to eliminate it.

House Joint Resolution 45* [44], 57, and 58 cancel federal power grabs that took decisionmaking away from the states and local governments who know the unique challenges of their own populations. The President firmly believes that Washington is not always the solution to these problems, and that these bills return the power to the people by putting more decisionmaking in the hands of states.

House Joint Resolution 44 removes a Bureau of Land Management rule, known as “Planning 2.0,” that would have centralized federal and land management in Washington, diluting the concerns of local citizens who have a right that is protected by law to be involved in this decision-making process.

H.J. Res. 57 and 58 eliminate the Department of Education regulations which limits states’ flexibility in how they assess the performance of schools and teacher preparation and programs. Removing these additional layers of bureaucracy will make it easier for parents, teachers and communities, and state leaders to address the needs of their students.

The President will continue to work with Congress and the rest of the federal government until every unnecessary regulation that stands in the way of success for American business and American people is taken off the books.

Additionally, the President spoke with German Chancellor Merkel and Indian Prime Minister Modi earlier today to congratulate them on their parties’ success in recent elections. We’ll have readouts on those calls a little later for you both.

The President also will announce the establishment of the Office of American Innovation. The Office of American Innovation will apply the President’s “ahead of schedule and under budget” mentality to a wide number of government operations and service, enhancing the quality of life for all Americans. The office will have a particular focus on technology and data, hearing back from leaders in the industry.

As some of its first priorities, the office will focus on modernizing the technology of every federal department, identifying transformational infrastructure projects, and reimagining the

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov VA system so thaCtaitscea3n:b1e7t-tcevr-0se0r4v8e5o-uWrHnaOtioDn’oschuemroeenst. 6T1h-e4efFfoilretdw0il3l b/2e9l/e1d7byPAasgseist8anotf t2o8 the President and Senior Adviser Jared Kushner.

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Tomorrow, the President will sign an executive order to strengthen the nation’s energy security by reducing unnecessary regulatory obstacles that restrict the responsible use of domestic energy resources. This order will help keep energy and electricity affordable, reliable and clean in order to boost economic growth and job creation.

And finally, before I came out today, Senate Democrats continued their obstruction to the President’s nomination of Judge Neil Gorsuch to the Supreme Court with the Judiciary Committee seeking a one-week postponement on its decision.

Over the weekend, Senate Minority Leader Chuck Schumer defended his decision to mount a filibuster against the President’s unquestionably qualified nominee. If Senator Schumer gets his way, this would be the first successful filibuster against a Supreme Court nominee in American history. He argued, quite misleadingly, that the Senate has “required” a 60-vote threshold of “every” Supreme Court nominee. That’s simply not true.

And as I’ve said before, only three Supreme Court Justices have faced a filibuster in the last half of the century. Senator Schumer cited four justices confirmed under President Bush and Obama, but in fact, among those four, only one faced an attempted filibuster -- that was Justice Samuel Alito. And it was President Obama who, then as a senator, voted to filibuster Justice Alito, and later publicly expressed his regret for that.

The fact is, an attempted filibuster of a Supreme Court nominee is rare, and to do so in this context, with such an eminently qualified and brilliant judge, is nothing short of obstructionism. That’s why Senator Pat Leahy, the former Democratic Chairman of the Senate Judiciary, said he is “not inclined to filibuster,” even if he ultimately may not vote to confirm the Judge.

The fact that the former Chairman of the Judiciary Committee won’t stand by the Minority Leader exposes the Leader’s efforts as nothing but obstructionism that undermines decades of Senate tradition. Through four days of extensive hearings, Judge Gorsuch demonstrated his judicial philosophy, his sterling academic credentials, and a brilliant legal mind. He deserves a fair up or down vote.

And with that, I’d be glad to take a few of your questions. Jonathan.

Q Is the President serious about working with Democrats going forward after what happened with healthcare?

MR. SPICER: Absolutely. In fact, starting Friday afternoon through late yesterday, he's received a number of calls, as well as other members of the senior staff that had been working on healthcare, from members of both sides, saying that they would like to work together, offer up

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov ideas, and had sCugagseest3io:1n7s-cavb-o0u0t4h8o5w-WtoHcOomDe otocuremseonlutt6io1n-4onFthiliesda0n3d/g2e9t/1to7 a PHaoguese9vootfe2o8n this.

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Q But --

Q But wouldn’t this require a --

MR. SPICER: I'm sorry, John, this isn’t a free-for-all. Jonathan is asking the question.

Q But wouldn’t this require a serious course correction for the White House? I mean, the President branded Chuck Schumer a "clown," worked entirely with Republicans on this bill. Wouldn’t this require a serious change of course for the President?

MR. SPICER: To some degree, sure. And I think the President talked about that. I think we learned a lot through this process. I think we're obviously looking at ways that we can improve not only how we handle healthcare, but other things -- how we do everything. And I mentioned it to some of you in the course of things. I think one of the traits of a successful organization is to always examine how you do things, but I think that there's been a lot of outreach from members of both sides with ideas, and the President is willing to listen to these individuals. And if they can come to a resolution on a way forward, obviously we're willing to listen and to move forward.

But there are a lot of folks that came forward with these ideas. And with all due respect, to the beginning of your question, I don’t think it's a one-way street some of the comments that have been made. I think some of the Democrats. who now say they weren’t involved, early on in the process said that they wanted nothing to do with this process, there was no way that they would engage in any discussion to repeal. So I think it's a two-way street, and I think that we have been willing to listen to folks and their ideas. And the President's advice is that if we can come up with resolution on a way to move forward, we'll certainly entertain that.

Q Where does the buck stop for this failure? Does the buck stop --

MR. SPICER: Just so we're clear, look, we're at the beginning of a process. I don’t think we've seen the end of healthcare. As most people have noted, I think the Obama administration, from beginning to end, it ultimately took about 17 months and went through a series of fits and starts. And it wasn’t until Scott Brown was elected, denying them the 60th vote in the Senate, that they finally jammed something through. And, frankly, a lot of the reason that the Secretary of Health and Human Services has some of the powers that they do is because they had to jam it through. But there were several failures, when Obamacare went through, during the process. And ultimately, they tried to go through a single-payer process, and they got rebuffed on that by some of their own members.

So, look, we're not saying it's the end of healthcare. But I think that we are looking to look for a way forward, and I think that a lot of the members -- and again, on both sides of the aisle --

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov have reached ouCtansoet 3ju:1st7t-ocvt-h0e0P4r8e5s-iWdeHnOt, buDtotocummeemnbt e6r1s-o4f tFheiletdea0m3,/2w9il/l1in7g tPoasghear1e0soomf 2e8 ideas both that will make -- that they think would make the bill stronger. But ultimately, the goal is to get to 216 and potentially 218, depending on where we are with special elections.

Page 9 of 27

And so we're going to look to see where we can get those 218 votes. And there may be other opportunities to work with people across the aisle that get us to 218. But that's the name of the game, and we're going to continue to pursue that.

Jim.

Q Sean, the last Congress passed significant tax reform, it took about five years, and that was 30 years ago, in 1986. After the failure or defeat of the American Health Care Act on an issue where there was broad GOP consensus, what makes the President think he can pass significant tax reform this year?

MR. SPICER: Well, I think it's been 30 years. I think people -- we have a series of -- we have an economy that's evolved, especially in the technology area; they just made a lot of things change. And I think our tax code is outdated. And, frankly, on the business side, we're uncompetitive. There's a reason that companies are leaving America to go to other places, because the same reason sometimes companies move from state to state. Our corporate and regulatory system has become unattractive for a lot of companies that want to either manufacture here, grow here, or begin here, or want to return jobs here.

I think the President recognized that, and business leaders from around the country. It's not a partisan issue. I mean, you go out to the tech sector, out in Silicon Valley in particular, there's a lot of these companies out there that admittedly weren’t with the President during the election, or continued not to be, and I think recognized that we are not as competitive as we can be when you consider the tax and regulatory climate of other countries around the world. And we need to be more competitive.

And then I think you look at the individual side of the House, and I think especially when you talk to middle-income Americans, especially in the context of health premiums skyrocketing up, they recognize that they need some relief. And so we've got to do what we can to address that.

Jon-Christopher.

Q Thank you. Historically, since healthcare has beguiled many Presidents, all the way to Harry Truman, and certainly when Hillary Clinton came to Washington, she went to the Hill and thought that she could get it done. I'm sure there are many lessons you can learn from previous Presidents and perhaps previous First Ladies. Has the President thought about reaching out to Hillary and finding out how she maneuvered and some of the best practices or some of the pitfalls that she came to?

https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: AnCdaI sthein3k:1t7h-actvy-0o0u4k8n5o-wW-H- OI meDaonc, huem'senmte6t1w-4ith FDirl.eZde0k3e/E2m9/a1n7uePl aangde o1t1heorfs2-8it's not been a -- he's reached out to several people throughout this process to gauge both their policy ideas and strategy ideas. And I think the President noted on Friday afternoon that we learned a lot, on several fronts, about strategically how to handle this, as well as some of the members that we thought we would have with us. And we're reexamining that on a variety of bases.

Page 10 of 27

Margaret.

Q Thank you. We got some guidance from the White House earlier about Chairman Nunes's meeting on the White House grounds, involving (inaudible) any idea that questions about the meeting should be referred to the Committee Chairman. But I wanted to ask a slightly different question, which is, does the White House know now what absolutely happened? Do you have issues with the idea that someone, perhaps in the executive branch, shared information from the White House grounds without you knowing about it? Or are you investigating this? Do you believe there was a leak? Or was it, in fact, someone on the White House staff or NSC staff, or on loan to either, who provided the information and therefore it's not leaked?

MR. SPICER: So, obviously, all of what I know has been available through public comments. I know that Chairman Nunes confirmed that he was on White House grounds Tuesday. And, frankly, any questions regarding who he met with or why he was here should be referred to him. I've seen some of the comments that he's made to your outlet in particular about who he met with. And I would refer you to his comments that he's made. I'm not going to get into who he met with or why he met with them. I think that's something that he had made very clear, and I'll let him answer it. He is the one who has discussed what he is reviewing. And so I will leave it up to him and not try to get in the middle of that.

Q Can I just follow up, just to close the circle on it? I'm asking a slightly different question, or at least I'm trying to ask a slightly different question, which is, does the White House know what happened now, beyond public accounts? And are you satisfied that you don’t have an inappropriate leak in the executive branch?

MR. SPICER: No, we're not concerned about that. I know that he is -- again, everything that I know about what he has done is through public reports that he has made on the record to different folks when he said he has multiple sources, he had met with different folks to gather things as part of his review of the situation. And so all I know, and what I'm willing to communicate, is what has been made available through on-the-record comments that he has made.

Q But to come to White House grounds you have to be cleared --

MR. SPICER: No, not necessarily. I don’t know that members of Congress need to be cleared.

Q Wouldn’t the White House want to know?

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: AgCaians, eI t3h:i1n7k-tchve-r0e0'4s 8a5d-iWffeHreOnceD.oHceu'ms denotin6g1a-4revFieilwed, a0n3d/2it9's/1n7ot Psoamgeet1h2inogft2h8at we're going to necessarily get in the middle of or get in the way of. Part of it is to let him review and have conversations and look at things that he thinks are relevant.

Page 11 of 27

Q Sean, a clarification on your answer to Margaret. You said, I don’t know that members of Congress have to get cleared in. There was some question about that. Who in the White House signed him in, essentially, to be able to --

MR. SPICER: I don’t know that you have to. I'll be glad to check on that. I'm not sure that that's how that works. But I will follow up on that point.

Q Okay, and my second question is -- and it's related to this -- I understand that you're not going to speak about some of the swirl surrounding this issue with Chairman Nunes. Does the White House believe that he can still lead an impartial investigation? Or would the administration support some of these calls now for an independent committee to investigate this?

MR. SPICER: First of all, I would question what "this" is. Because as I've mentioned countless times from this podium, there's two issues at hand -- there's multiple. Number one, there's any action with respect to Russia itself. And every single person that's been briefed by Director Comey in particular, and the FBI, has said there's nothing there. What he is looking into are two things that we are aware of because of the pleas that we have made. One is the leaks of classified and other information that have come out. And two is whether or not there has been people that have been unmasked, and whether or not there was surveillance -- I don’t know why -- we stand by the original request that was made. And I think Director Comey, in open testimony the other day, talked about what the FBI is looking into.

So I think we have a lot of people looking into this whole situation.

Q Will the administration pursue, will the White House pursue a leak investigation into whoever is giving Chairman Nunes this information, if it's in the executive branch?

MR. SPICER: At this point, we're letting his -- the review of this situation proceed. And we can address that after he decides to be clear about that.

Q Why is this leak okay, but other leaks are not?

MR. SPICER: I think there's a difference between a leak and someone pursuing a review of a situation that they have determined. There's a difference between a leak -- someone leaking out to reporters for nefarious -- to take classified information and share it with people who aren’t cleared. Chairman Nunes is cleared; he's the Chairman of the Intelligence Committee. Someone who is cleared to shared classified information with somebody else cleared is not a leak.

Zeke. https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov Q I have two foCraysoeu.3:J1u7s-tcav-q0u0i4ck85h-oWusHeOkeeDpioncgunmoeten.t A6t1t-h4e bFeilgeidnn0i3n/g2o9f/1th7e bPraiegfein1g3, yoofu28 read out that the State Department stated on the protests and arrests in Russia. Does that reflect the White House's views?

Page 12 of 27

MR. SPICER: That reflects the view of the United States government.

Q Okay, just wanted to clarify that. And secondly, back on -- you mentioned there were lessons learned off of what went down last week, the last several weeks, around healthcare. Can you give us some specifics on what some of those lessons are in terms of the President talked a lot about he learned a lot about loyalty, I think is one of the lines he stated on Friday? Does he believe that some members of his party are no longer loyal to him? Will you go through what are some of the lessons that --

MR. SPICER: No, I'm not going to detail, go through -- I mean, obviously this is an internal thing. But I will say that we look at things like -- everything from who we met with and when we met with them, to whether or not we should have -- how everything was rolled out and what organizations were met with, what commitments were met and when. But there's a lot that goes into this. And you look at whether or not that's applicable to another situation, whether that's unique. But obviously, yeah, you do look at some of the individuals that you met with, both in terms of timing, in terms of commitment, in terms of substance, and evaluate just the process itself, but then also, to some degree, the individuals and whether or not that is someone that --

Q Who's leading that review?

MR. SPICER: There's several folks. Again, it depends on the aspect of it. There's a legislative affairs team, there's a public policy team, there's a comms aspect to this. But we all internally talk about what went well, what didn’t. And we do that not just with the bad, but the good.

I mean, I think Jonathan asked it somewhere at the beginning, but I think most organizations -whether or not you do something really well or not as well -- it's usually incumbent upon you to think, what did we do well so that for things that we did really well, we sustain those kinds of aspects of something -- because there's always something to improve -- and even when you don’t do as well. But there's part of things that you did that you did well and you don’t want to throw the baby out with the bath water. So there's an ongoing piece to this.

Major.

Q Just a quick follow-up on Chairman Nunes, and then I have a question about Jared in a second. So, yes, members of Congress may not need to be cleared in, but to get access to a SCIF, I do believe that requires some cooperation from the executive branch, because there are intelligence places on Capitol Hill that are secure, that his meeting could have taken place. So it creates the impression that Chairman Nunes came over here and, with some degree of cooperation with this White House, was able to carry out this meeting and then make the

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov announcementCthaasteh3e:d1i7d-,cwv-h0i0ch48is5p-WerHceOivedDobcyusmomenet-6- m1-o4st Foiflethde0m3/D2e9m/1o7craPtas,gIe'll1g4raonft28 you that -- that it was trying to be helpful to this President and this administration. So it appears there was some degree of cooperation in this process that the White House granted Chairman Nunes, making it not just an investigative action, but a cooperative one.

Page 13 of 27

MR. SPICER: Right. So I would refer you to two things. Number one, we've asked both of these entities, both the House and the Senate Intelligence Committees, to undertake this review. So it is partially at our request that they're looking into this.

Number two, based on the public comments that he made to Margaret's organization, he has said, from my understanding, on the record, that he did not meet with White House staff. So, again, I think you're trying to making something that he -- is himself, from what I've read, not actually been the case.

Q That's not what I asked you. I asked you about cooperation to have access to a SCIF, which is something that has to be carried out with your --

MR. SPICER: I understand. I will be glad to take a look at that and figure out whether or not that is an accurate statement or not.

Q Okay. Let me ask you about Jared. There is an understanding that's trying to be worked out, as we understand it, between Jared and the Senate Intelligence Committee. Is that a testimony? Is that something that the committee has requested? Has he volunteered? Does he believe he has something to explain to that committee and, more broadly, the American public about what he did on behalf of the transition with whom he met with, and some of the meetings that he took that are raising questions about Russia and folks that he met with that are outside of diplomatic channels but have other aspects to their Russian business deals that may cause some stir?

MR. SPICER: So, throughout the campaign and the transition, Jared served as the official primary point of contact with foreign governments and officials until we had State Department officials up. Once we assumed --

Q (Inaudible) request?

MR. SPICER: That's correct. And so given this role, he volunteered to speak with Chairman Burr's committee, but has not received any confirmation regarding a time for a meeting or anything.

Q And is this going to be a private meeting, or is this going to be --

MR. SPICER: I don’t know. Again --

Q What is he trying to accomplish with that?

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: I thCinakseba3s:1ed7-ocnv-t0h0e4q8u5e-sWtiHonOs thDaotcsuumrroeunnt d61th-4is, hFeilevdol0u3n/t2e9e/r1e7d toPgaogein1a5ndofs2it8 down with them and say, hey, I'm glad to talk about the role that I played and the individuals I met with. But again, remember, given the role that he played both during the campaign and during the transition, he met with countless individuals. That was part of his job. That was part of his role. And he executed it completely as he was supposed to.

Page 14 of 27

Q And so he doesn’t believe he owes the American public an explanation?

MR. SPICER: For what? Doing his job?

Q I'm just asking.

MR. SPICER: But you're acting as though there’s something nefarious about doing what he was actually tasked to do.

Q Well, it's not every day that someone in a senior position like Jared’s volunteers to go talk to the Senate Intelligence Committee about an investigation dealing with meddling by a foreign power in an American election.

MR. SPICER: And I think based on the media frenzy around this, he --

Q I'm just asking.

MR. SPICER: And I'm answering it. And I'm just saying to you that based on the media frenzy that existed around this, he volunteered to make sure that they -- he said, hey, we've made some contacts, I'd be glad to explain them, let me know if you’d like to talk. Plain and simple.

Q Just to be clear, just to kind of follow up on what everyone has been asking about Chairman Nunes -- so the White House does not -- does the White House have knowledge of the information that Chairman Nunes received when he came to the White House the first time? And if that's the case, or if that's not the case, is your position that the White House is not going to look into where he got the information from or who gave him the information until his investigation is complete?

MR. SPICER: I think that -- I'm not aware of where he got it from. I know in his public statements he’s talked about having multiple sources. And so I don't know how he derived the conclusion that he did. And I think that at this point, the goal would be to wait until the review that he is undertaking is completed.

Kaitlan.

Q Why would Nunes need to brief the President on documents he viewed on White House grounds?

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: BeCcaaussee3th:1a7t-'scva-b00ig4a8s5s-uWmHpOtionDtohcaut myoeun'rte6m1-a4kinFgilethda0t 3th/2a9t'/s1t7hePoanglyeth1i6ngo.f 2A8s I said just a second ago, he had multiple sources on multiple topics. We don't know what he briefed him on in its totality. And so to jump to that conclusion is, frankly, irresponsible.

Page 15 of 27

Q One more question. When will the White House resume releasing visitor logs?

MR. SPICER: We're reviewing that now.

Alexis.

Q Just to follow up -- I have two questions. One is on taxes. But last week you were advising the press corps that it didn’t make sense for Nunes to come to the White House to brief the President on something that he had obtained from the White House, from the administration. So my question to you is -- I know what you just said, but can you say factually, absolutely flatly, that it is not possible that Chairman Nunes came to brief the President on something that he obtained from the White House or the administration?

MR. SPICER: I can't say 100 percent that I know anything what he briefed him on. What I can tell you through his public comments is that he has said that he had multiple sources that he came to a conclusion on. So to the degree to which any of those sources weighed on the ultimate outcome of what he came to a decision on, I don't know. And that's something that, frankly, I don't even know that he discussed with the President.

Q So it's possible? As far as you know right now, it's possible?

MR. SPICER: Anything is possible.

Q Okay. Here’s my question on taxes. The President has said in the past that he thought maybe tax reform would flow over into 2018 -- calendar year 2018. And we know from the President’s admiration of the 1986 tax reform, that took more than two years. Can you answer two questions about tax reform? Does the President anticipate that it will take that long, going into 2018 or beyond? And who is going to write the tax legislation? Who is going to devise the plan that the President wants to put his name on?

MR. SPICER: Well, so on the first one, I know that Secretary Mnuchin has talked about August as a target date. And I think it depends. I mean, as you point out, these are big things. There's a lot of groups that are going to want a ton of input because of the very nature that it's been 30 years. But I think part of this is going to be dependent on whether -- the degree to which we can come to consensus on a lot of big issues. But I know that we have a goal and it will depend on a lot of these issues, both on the corporate side and on the individual side, how that process evolves.

So to predict it -- I know the Secretary would like to have it done. He'll play a huge role in this. Gary Cohn will play a big role in it. I think our legislative affairs team will play a role in it. There’s a lot of folks on the team -- Secretary Ross on the Commerce side. There’s a lot of
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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov individuals -- heC’saassese3m:1b7l-ecdv-a0w04o8rl5d--WclaHsOs CaDboinceutmtheantt h6a1s-4a loFtiloefdin0t3e/r2e9st/1in7 hePlapgineg1to7 gorfo2w8 the economy to attract jobs, create a more favorable tax climate here in the country, but also provide tax relief for middle-class Americans.

Page 16 of 27

So we're not there yet.

Q So will it would be the Trump plan?

MR. SPICER: What?

Q Will it be the President’s plan?

MR. SPICER: I mean, obviously we're driving the train on this. So, I mean, we're going to work with Congress on this. But I think the President, as you’ve heard multiple times the President be very clear -- this is a huge priority for him and something that he feels very passionately about. And so we'll have more on that later.

John.

Q Sean, the documents that Chairman Nunes saw here at the White House complex are described by his office as being executive branch documents. In the early days after the President sent out that tweet, the White House was digging around for anything to corroborate what the President had tweeted out. Why did it take the Intelligence Committee Chairman coming here to the White House to view executive branch documents to uncover this information? Why couldn't the White House?

MR. SPICER: Well, as I mentioned I think to Margaret, I'm not going to -- I will stick to what the Chairman has said publicly. And my understanding from his public comments are that there are certain systems that he doesn’t have access to. That was his explanation, and I'm going to -- I think you should follow up with him on that.

Q Did the White House ever search the same documents that the Chairman searched?

MR. SPICER: I don't know what he found, so therefore it would be hard to say -- to make an assessment of what he was briefed on or what we know. So that's a really hard question to answer at this point.

Q Is it possible that these documents were merely surveillance reports that were --

MR. SPICER: I'm not going to get into hypotheticals, John. I don't know what he found. And to start to say what’s possible, what’s not, I don't know.

Q Well, let me just finish, if I could. Is it possible that these were surveillance reports from security clearances that were collected after people had filled out Standard Form 86?

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: I dCona'stekn3o:1w7.-cI vd-o0n0'4t 8k5n-oWwHwOhatDhoec-u- mI heonnte6s1tl-y4doFni'let dkn0o3w/2w9h/1a7t heP’as ggeot1o8nohfis28 systems and what the intel community has on theirs that he wouldn't have access to. So I don't know what he would have had access to already.

Page 17 of 27

Eamon.

Q Thanks, Sean. On tax cuts, it looks like you guys got a little bit of political cover from the House Freedom Caucus over the weekend to do this without paying for all of it -- that is, adding to the deficit. What’s the right number from the White House’s perspective to add to the deficit in order to do tax cuts? How high are you willing to go in terms of deficit?

MR. SPICER: It's a really early question to be asking at this point. I think the question is, as we construct this both on the corporate side and then on the individual side, I think part of it is it's going to be an equation that isn't just driven by that, but more what’s going to attract jobs, what’s going to help us build, what’s going to grow the economy. I think we're growing around -- potentially, growing around 2.6, and the President really would like to see that growth right up in the high 3s, 4s, and 5s. And so there’s a question about what part of tax reform, especially on the corporate side, will help us spur the economy and grow jobs.

And I think that's an ongoing discussion. I think that's more of the driver of this. And then I think as it evolves we'll have the score and we'll know more.

Q Are you comfortable entirely adding to the deficit? Or do you think something needs to be offset, maybe some other spending cuts somewhere else?

MR. SPICER: You're asking really early in the process to make that kind of analysis before we have a policy set forth or have any kind of notion of what a score would look like.

Olivier.

MR. SPICER: Thanks, Sean. There’s been an escalation of the American role in the war against the Islamic State. You've seen Marines come ashore in Syria. There have been changes to rules of engagement. I'm trying to understand the relationship between that change and the President’s ISIS strategy review. Has he personally signed off on all the changes in America’s posture in the field since January 20th? Is that something that's left up to the commanders in the field? I don't understand the relationship between --

MR. SPICER: Well, it depends on which mission you're talking about, specifically, or --

Q Marines left in, I think, October. They obviously went ashore much more recently than that. So did he have to sign off on that?

MR. SPICER: I think it depends on -- I mean, he speaks with General Mattis, his national security team very regularly. I'm not going to get into some of the details of what comes up in those settings. But I will say that, as I've noted in the past, I think philosophically the President has

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov made it very cleCaratshea3t :h1e7w-cavn-0ts0t4o8g5i-vWe HthOe coDmomcuamndeenrts6o1n-4theFgilreodu0n3d/m29u/c1h7mPoraegfele1x9iboilfit2y8to execute their mission, especially when it comes to defeating ISIS. That's a very big change in philosophy, but I think it also depends on the magnitude of the mission, the number of ground troops in particular. And so this is an ongoing discussion that he has with Secretary Mattis, Chairman Dunford and others.

Page 18 of 27

Q So, on the review, are you waiting -- is the President waiting until the review is complete before you announce sort of a new posture and new strategy? Or is it as conclusions come in you're adapting day to day?

MR. SPICER: I think some of it is an ongoing discussion that he’s having with both Chairman Dunford of the Joint Chiefs and Secretary Mattis of DOD. At certain times when they meet they’ll update him on certain things and give him an update on where they’re headed right now. As the review is ongoing, there’s certain events that are part of -- will be part and parcel of the review in terms of where we're going, and so they’ll update him on that and talk to him about the tweaks.

Gabi.

Q Thank you, Sean. President Trump has sent out two tweets now criticizing members of the House Freedom Caucus for preventing Planned Parenthood from being defunded by opposing the AHCA. Is that something that he would want to see tacked on as a rider to next month's spending bill?

MR. SPICER: Well, I think that he's made very clear what his position is on Planned Parenthood, and obviously this was an opportunity to defund it. But I don't want to get ahead of our legislative strategy. We'll look at other opportunities. But this is definitely one that was a way to make that happen.

Steve.

Q On that legislative strategy and the idea of working with Democrats, there’s a school of thought in this town that last week proved that the President is lacking in political capital. So I have two questions. One is, what’s in it for Democrats to work with the President now? And two, if fully pursued and to get things through the House, Democrats and Republicans work together, wouldn't that tend to undermine the job security of Speaker Ryan if the House Freedom Caucus is frozen out?

MR. SPICER: Well, so two things. Number one, I think the message that sends to the American -- as I mentioned to, I think it was Jonathan, at the beginning, it's a two-way street. We heard -when you see whether it's Judge Gorsuch, which they’re throwing down decades of Senate tradition by saying we're just going to filibuster this guy -- I don't think there’s anyone in America that can honestly look at his qualifications and suggest that he’s not qualified as a

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov jurist on the SupCraesmee3C:o1u7r-ct.v-I0m0e4a8n5,-tWheHrOe’s nDootchuinmgetnhta6t 1an-4yonFeilehdas0s3e/e2n9/o1r7laiPdaaggelo2v0e oofn28 him through these four days that suggests that he’s not qualified to serve.

Page 19 of 27

And I think that it's a -- and again, with Obamacare, repealing and replacing it, several of the leading Democrats came out from the get-go and said, we have no interest in doing that. So I think there’s a point at which both parties can look back and figure out whether or not it's worth engaging. I think the President, as I mentioned, is eager to get to 218 on a lot of his initiatives, whether it's tax reform, infrastructure. There are a lot of things. And I think that he is going to be willing to listen to other voices on the other side to figure out if people want to work with him to get these big things done, to make Washington work, to enhance the lives of the American people, then he’s going to work with them.

I think he had a great meeting with the CBC the other day, for example, where he talked about infrastructure. He talked about loans and small business lending, education. There are things that he is willing to engage individuals with -- or groups or caucuses -- to get to 218 and further advance his agenda.

So it's not about undermining anybody. It's about moving the agenda forward and getting things done.

Q It's Speaker Ryan who puts bills on the floor, not the President. So what’s in it for Speaker Ryan?

MR. SPICER: Getting things done. I think there is still a sense of doing what’s in the best interest of this country that exists. So I mean, let’s just make sure that we understand -- I think that his goal -- he came here to get things done. And I think as was pointed out, there was a level of disappointment that he expressed on Friday. He wants to get things done. If people want to work together -- and I think what this event on Friday did was, frankly, draw more people into the process, to saying, okay, let’s figure out if we can actually come together with some consensus ideas to get to 218, whether or not they come from one side of the aisle or the other, to pass this bill and make a better system.

He understands -- and frankly, I think a lot of Democrats do -- that there’s an opportunity here. With healthcare being such a big issue, with Obamacare being such a looming disaster, that we have an opportunity to do some stuff. And if Democrats want to join in, then that's great and we'll do that.

Mike.

Q You’ve talked quite a bit up there about the wide latitude that Secretary Price has to dismantle Obamacare from this spot. Is that still the case? Will he continue to try to dismantle Obamacare while you're trying to work with moderate Democrats on healthcare reform? And also, the healthcare bill would have repealed almost all those Obamacare taxes. Do you want to see those repealed as part of the tax reform bill?

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: I thCinakseSe3c:1re7t-acrvy-0P0ri4ce85is-WupHhOereDtoodcuamy.eTnhte6r1e-’s4a lFoitleodf m03e/e2t9in/1g7s thPaatgaere2a1lroefa2d8y taking place internally with the team. There’s a lot of options that are on the table in terms of -especially when it comes to what we call phase one and phase two, trying to get some of that stuff out the door. And as we look back on -- talking about lessons learned, I think one of them is to try to get some of the phase one and phase two meshed together and pushed out.

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How we do that, whether we wait for the revival of legislation before we put it up -- remember, I think -- just so we're clear, and I mentioned earlier on this -- Obamacare had a ton of fits and starts during its process. It was left for dead multiple times, but they pressed forward. I don't think that that's necessarily a model to look for in terms of how they jammed it down, but I do think that we have to recognize that we were 17, 18 days into this process.

I think the President has made very clear it's not over, there are people coming to the table, but he’s going to listen to all good ideas across the spectrum to figure out what it takes to get to 218. And we'll see where we go from there.

John.

Q The tax question, to follow up on the -- the healthcare bill would have repealed those Obamacare taxes?

MR. SPICER: And I think that's part and parcel of that discussion, is how we look at both the taxes and some of the phase one stuff. But we're not ready to announce anything now.

Jon Decker.

Q Yeah, as far as Jared Kushner’s offer to meet with Chairman Burr and talk with the Senate Intelligence Committee, is there any particular reason why the White House would not be opposed to the idea of Jared Kushner testifying, under oath, before that committee?

MR. SPICER: Again, Jared volunteered to meet with the committee. They haven’t even confirmed having a meeting yet, so to get ahead of what they’ve even asked for would be a little silly.

Q But does it set, in the White House’s view, a dangerous precedent in having a senior aide to the President going up? Ordinarily, we see, sometimes, the White House invoking executive privilege. Why haven’t you done this in this particular case?

MR. SPICER: Because I think Jared did a job during the transition in the campaign where he was a conduit to leaders, and that’s until we had a State Department -- a functioning place for people to go. Remember, we had a delay in some of these things, and that was his role. And he wants to make sure that he’s very clear about the role that he played, who he talked to, and that’s it.

Jim.

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MR. SPICER: I don’t think it’s dead in the sense --

Q Or it would have to be dead if you’re going to have Democrats working with you to address the Affordable Care Act.

MR. SPICER: Why? No, no, no, I don’t know that that’s true because I think it’s --

Q Why would they work with you if --

MR. SPICER: Because it’s dying.

Q -- you’re still trying to repeal it?

MR. SPICER: Because I think part of it is, is there’s a recognition that it is failing. It’s dying on its own. It will be dead soon.

Q A lot of Democrats say it’s not dying.

MR. SPICER: Okay, well, then a lot of Democrats need to get more money, because --

Q There are repairs that need to be made, they say, but to kill the whole thing might not be the route they want to go.

MR. SPICER: I understand what they want, but I think there’s a difference. I think that we recognize that premiums continue to go sky-high, deductibles are going sky-high, choices are going down. By Leader Pelosi’s own metric, this is dying. She’s the one who crafted the metric. She said that there was a three-pronged system to determining its success. It is an abysmal failure. If they want to come back to the table and recognize how we can do it in a more responsible way to achieve the goals that Obamacare set out to do -- but do so in a way that is going to do the opposite of what Obamacare actually did, which is to increase choice, drive down cost -- we’re willing to have that discussion. But right now --

Q They say repeal has to be put to the side.

MR. SPICER: Right. But, Jim, one of the things that I mentioned -- I just want to be clear on this -- is we have to figure out how we get to 216, 218, depending on where the number is that given day. That doesn’t mean we need the entire Democratic Caucus. That means we need some responsible Democrats who want to sit down and have a discussion about how to do that. And I think that there may be enough of them that are willing to do that, but I understand where the Democratic leadership is, and that’s one thing.

I mean, they continue to stake out a very, very far-left position. That’s not where all their members are. And I think that we can -- based on the calls that have come in over the last 50,

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov 60 hours, I thinkCtahsaet t3h:e1r7e-cmvi-g0h0t4b8e5s-WomHeOrooDmoctoumhaevnet a61c-o4nveFrisleadtio0n3/w2i9t/h1p7eoPpalegwe h2o3woaf n2t8 to engage in a constructive conversation on how to move forward.

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So let’s see how that evolves. I don't know that we’re ready to jump into this today, but I think as the calls come forward, the President’s view is, if you all want to get together and start coming to a way that we can come to resolution, we’re willing to listen. But right now, we’ve got an agenda to continue to pursue.

Q There might be a middle ground there you think?

MR. SPICER: I’m not going to jump ahead, but I will say that we believe that there is something that could still be done at some point, and I think the further along we go, where premiums continue to go up, more and more people will be drawn into this discussion because there is going to be a continued cry from people in terms of the impact that it’s having on their pocketbook and on their ability to see people that -- a doctor of their choice or a plan that’s just not seeing them anymore.

Q A real quick follow-up on Chairman Nunes. Do you reject that there is any kind of perception problem whatsoever in having the Chairman over here the day before he comes out publicly and says, by the way, there’s this information that’s helpful to the President?

MR. SPICER: Well, I think the Chairman has made very clear through his public comments what his goal was, and I think anyone who wants to -- I mean, you can’t ask someone to do a review of the situation, and then sort of create inferences because they’re reviewing a situation that there’s something that’s not right about that. He is reviewing a situation. He did exactly -- and I think he’s been fairly open with the press as far as what he was doing, who he spoke to, and why. And I think, you know, from our standpoint, that’s what we had asked to do, is a review.

April.

Q Sean, several topics. One --

MR. SPICER: Shocker. (Laughter.)

Q Don’t be. You heard the question that I lobbed at the Attorney General about the hate crime that happened in New York -- the white supremacist who went to New York and targeted a black man. Hate crimes are on the rise. What do you say? What is this White House saying about this obvious apparent hate crime?

MR. SPICER: I’m not going to -- I mean, you yelled at the Attorney General a specific case, if I'm --

Q The White House in the past had talked about this. And you talked about issues of hate crimes --

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: I’mCgalsaed 3to:1t7a-lckva-b0o0u4t8t5h-eWisHsOuesD. Iojcuusmt weannt t6t1o-4be Fveilreydc0le3a/2r 9th/1a7t I aPmagneot2g4ooinfg2t8o reference any specific case before the DOJ right now. I will say that the President has recognized that we need to bring the country together. He wants to unite this country. He wants to bring people together. He had a very long conversation with respect to race in itself, which I think is somewhat -- if I’m not correct in your question --

Page 23 of 27

Q (Inaudible.)

MR. SPICER: Okay, I just want to be clear. Thank you. And I think that was one of the topics that he talked about with the CBC. Some of the issues, with respect to crime and education, and some of the solutions that they suggested that could be done during their meeting. And I think those are the kind of things that I think we can continue that conversation.

Q Sean, unfortunately there has been a rise in hate crimes when it comes to different groups, to include anti-Semitic crimes. You’ve commented from that podium -- this is clear -- this gentleman, in his jailhouse, gave a statement to a reporter talking about he wishes the man were younger and he was a thug that killed. So what do you say to this? This is clear -- it’s racism at its ugliest.

MR. SPICER: Two issues. Number one, I think hate crimes, anti-Semitic crimes of any nature should be called out in the most reprehensible way. There is no room for that in our country, and I think the President noted that in the Joint Address, that there is one issue that, despite policy, should unite us -- and that is calling out hate, that is calling out divisiveness based on the color of one’s skin, one’s religion, one’s gender.

The President has been very clear on that, and he’s called it out before. With respect to certain particular situations, he made it very clear. At the opening of his Joint Address, that’s what he led with -- is a call to denounce hate no matter where we come from politically. He’s also talked about it the night that he took the stage on that Wednesday morning around 2:40 a.m., about how one of the things that he needed to do and wanted to do as President was unite all Americans.

But I think that there’s one other piece to this, April, that I just want to be clear on. While we unequivocally -- no question about it -- need to call out hate, anti-Semitism where it exists, there is another thing that we have to do, and, in your case in particular, while I don't know all of the details, and I don’t want to reference any specific case -- but I think we saw this the other day with some of the anti-Semitic behavior that was going out with respect to people of the Jewish faith, is that we saw these threats coming into Jewish community centers, and there was an immediate jump to criticize folks on the right and to denounce people on the right and ask them to condemn them. And it turns out that, in fact, it wasn’t someone on the right. And it was -- and the President, from the get-go, had said, I bet you it’s not someone -- and he was right. And yet --

Q I'm not calling this -https://www.whitehouse.gov/the-press-office/2017/03/27/press-briefing-press-secretary-sean-spicer-3272... 3/28/2017

Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: HoCldaosen,3I:u1n7d-cevrs-0ta0n4d85th-Wat.HAOndDthoactu’sm-e- nt 61-4 Filed 03/29/17 Page 25 of 28

Page 24 of 27

Q -- saying he’s a white supremacist.

MR. SPICER: I understand that. And I think, in those cases, there’s no question -- black and white -- we need to call out all instances of this.

That being said, while we’re on the topic, I do think that there has been a rush to judgement in a lot of other cases when it comes to -- in particular, some of the anti-Semitic discussion -where people have jumped to the conclusion about denouncing people on the right and asking for this. And in that particular case, we saw that the President was right and that this rush to judgment by a lot of folks on the left was wrong, and none of them have been held to account on that. And that is something that equally needs to be called out.

When people are charging something of someone that is not true, there has been nothing to go back to those individuals -- nothing -- on the left who came and asked for everyone on the right to denounce something that they weren’t guilty of. And I think that there needs to be an equal -- go back in time and call out those individuals for rushing to judgment and calling out those individuals.

Q And my second topic, and I’m done. Someone who was in the room -- you like talking about the CBC meeting that happened last week. Someone who was actually in the room, at that meeting, said that the issue of HBCUs came up -- and that’s a very sensitive subject right now in the black community and here at the White House. The issue of HBCUs came up, and Omarosa said that she would be the one heading the HBCU Office at the White House, and the President did not make a response confirming or denying. Will this be the case? Is this the case?

MR. SPICER: We don’t have any announcements to make. I assume that you’re referring to the executive order, and we don’t have anything to announce on that subject at this time.

Kristen.

Q Sean, thank you. Given that the Freedom Caucus blocked the bill to repeal and replace Obamacare, does the President still believe he can work with the Freedom Caucus on future pieces of legislation?

MR. SPICER: I think it’s going to depend on what legislation --

Q So not necessarily?

MR. SPICER: Well, again, I’m not going to -- it’s not a question of -- we’re going to work with anybody who wants to work with us on achieving the goals the President set out. I don’t think -- we’re not putting anyone and saying, “We’ll never work with you again.” It is that balance --

Q Has he written them off?

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov MR. SPICER: NoC, Iadsoen3’t:1t7h-inckv-h0e0’4s8w5r-iWtteHnO-- nDoo, Ictuhminekn, ta6s1h-e4meFnilteidon0e3d/,2h9e/1l7earPneadgea 2lo6t of 28 through this process about loyalty. And it’s not just a bloc, it’s certain individuals. And again, I’m not going to get into naming names, but I think the President learned a lot through this process.

Page 25 of 27

And one of the things that’s interesting is, when you look back -- and I know there’s been a lot to make of this -- the President also recognizes when there’s not a deal to be made, when to walk away. That’s one of the traits -- it’s not just about making deals, it’s knowing when to walk away from deals, and knowing when there’s a bad deal that’s the only solution.

And I think the President understood that while you can get a deal at the time, that sometimes a bad deal is worse than getting a deal. And I think he smartly recognized that what was on the table was not going to be keeping with the vision that he had, and so he decided that this was not the time and that a deal was not at hand.

Q Let me ask you about this tweet over the weekend. Does he regret tweeting to his followers that they should tune in to Judge Jeanine only to tune in, and then have her call for House Speaker Paul Ryan to step down?

MR. SPICER: He’s a fan of the show. That’s it, plain and simple. I mean --

Q But does he owe Speaker Ryan an apology then?

MR. SPICER: He and Speaker Ryan talked extensively over the weekend.

Q Did they talk today?

MR. SPICER: I don't know if they talked today. I think they talked both Saturday and Sunday at length. But again, he is a fan of the show. He tweeted out support of it. That’s it, plain and simple.

Q A lot of people say it’s a lot more than coincidence.

MR. SPICER: I know what a lot of people say, Kristen. I just said it.

Q So does he owe the House Speaker an apology?

MR. SPICER: No. He doesn’t -- he has spoken -- for what? For supporting a show on Fox? No.

Dave.

Q And does he still have confidence they can work together, Sean?

MR. SPICER: Dave.

Q Two questions. One on the President choosing Jared Kushner for this new Office of American Innovation to reform government across the government. Obviously, Jared Kushner
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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov has 60-some daCysaosfee3x:p1e7r-icevn-c0e0i4n8W5a-WshHinOgtoDno--cnuemveenr th6a1d-a4 prFioilregdo0v3e/r2n9m/1e7nt jPoba.geDo2e7sothf e28 President view that, somehow, as an advantage in this case?

Page 26 of 27

MR. SPICER: In some cases, when you look at the individuals that he’s bringing in. Again, I think one of the things that Jared -- and again, they may talk more about this later -- but one of the things that Jared is looking at is some of the procurement -- the technology aspects. And if you’ve ever really dealt with the government and recognized how outdated and un-modernized some of this is, it is not serving the American people, it is not serving the constituents that many departments have. And I think looking at how we procure different things and procure technology in particular is important.

It’s an important way -- I mean, I think when you look at the VA, in particular, and recognize how it handles certain things -- there are certain things it does really well, by the way. It buys prescription drugs really well. It buys them in bulk -- gets the job done. But there’s certain things that it may not do as well in terms of how it keeps its records and how it serves veterans, how it lends money, et cetera -- that we can look at and figure out is there a better way.

Government is not business, right? We recognize that there are certain things that business would never do in terms of what government has to do, because we serve all of our people. But there are certain practices that we can put in place that can help us deliver a better product, a better service to the American people in some of these key areas. And I think that when you look at some of the business acumen that Jared and some of the other individuals who he is bringing into this process can really -- I think it is a great service to this country. \

There are so many individuals that Jared has talked that have done so well and been so blessed by our nation that have wanted to give back in some way, shape, or form, and are using this opportunity to help our country and serve our country in ways that they believe they can use their expertise to do.

Q On healthcare, this review that you’ve talked about -- what went right, what went wrong -- I know you don’t want to name names, but would it be fair to say, at this point, that the President has written off some people?

MR. SPICER: I just -- I think I answered that question. It’s not a question of written them off, it’s a question of understanding -- there’s sort of an understanding of how you deal with certain people and how they dealt with you. But it’s not a question of writing them off. We’re going to need to get to -- as time goes on, we’ll get to -- I’m just going to keep saying 218, it’s easier. I won’t screw that one up down the line.

But I think that we recognize that as we go down this path of a big, bold agenda that the President has, that we’re going to need every vote we can, and hopefully grow the vote in some cases to well beyond that. But we’re not writing off anybody, but we do recognize there are some lessons learned form this process, and the President made it very clear on Friday.

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Press Briefing by Press Secretary Sean Spicer, 3/27/2017, #29 | whitehouse.gov Thank you, guysC, avseery3m:1u7c-hc.v-I’0ll0s4e8e5y-WouHtOomoDrroocwum. Eennjto6y1t-h4e dFaiyle. d 03/29/17 Page 28 of 28

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EXHIBIT E

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COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT
No. SJC-12276
COMMONWEALTH OF MASSACHUSETTS, Respondent-Appellee, v. SREYNUON LUNN, Petitioner-Appellant.
BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

Chad A. Readler

Erez Reuveni

Acting Asst. Attorney Gen. Senior Litigation Counsel

William C. Peachey Director Office of Immigration Litigation, District Court Section

Joshua S. Press Joseph A. Darrow Trial Attorneys U.S. Dept. of Justice Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-0106

Dated: March 27, 2017

Counsel for Amicus Curiae

Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 3 of 62
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE...................................1
STATEMENT OF THE ISSUES.....................................3
STATEMENT OF THE CASE.......................................4
I. STATUTORY AND REGULATORY BACKGROUND....................4
II. PROCEDURAL BACKGROUND.................................16
SUMMARY OF THE ARGUMENT....................................19
ARGUMENT ................................................... 22
I. STATES MAY TEMPORARILY HOLD ALIENS SUBJECT TO A FINAL ORDER OF REMOVAL IN RESPONSE TO AN IMMIGRATION DETAINER .............................................. 22
A. Detainers Are Voluntary..........................22
B. States Have Inherent Authority To Assist In The Enforcement Of Federal Law.......................24
C. Immigration Detainers Provide Probable Cause, Such As Where The Individual Has Previously Been Ordered Removed, For State Officers To Detain Someone....31
D. State Officers May Rely Upon A Federal Officer’s Determination That Probable Cause Exists That An Individual Is A Removable Alien, Such As Where The Individual Has Previously Been Ordered Removed...34
II. THE TEMPORARY DETENTION OF AN ALIEN SUBJECT TO A FINAL ORDER OF REMOVAL, PURSUANT TO AN IMMIGRATION DETAINER, DOES NOT VIOLATE THE FOURTH AMENDMENT.................39
A. There Is No Fourth Amendment Requirement That An Immigration Detainer Be Issued By A Neutral Magistrate ....................................... 39
B. Fourth Amendment Criminal Procedural Requirements Have Never Been Imposed On The Civil Immigration System—And For Good Reason.......................43
III. THIS CASE IS A POOR VEHICLE FOR ADDRESSING THE CONSTITUTIONALITY OF IMMIGRATION DETAINERS WRIT LARGE 47
CONCLUSION ................................................. 50 - i -

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TABLE OF AUTHORITIES
U. S. Supreme Court Cases Abel v. United States, 362 U.S. 217 (1960)................................20, 41, 44
Arizona v. United States, 132 S. Ct. 2492 (2012).................................passim
Carchman v. Nash, 473 U.S. 716 (1985).........................................5
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2013).....................................48
Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991).........................................41
De Canas v. Bica, 424 U.S. 351 (1976)........................................23
Demore v. Kim, 538 U.S. 510 (2003)........................................39
FERC v. Mississippi, 456 U.S. 742 (1982)........................................22
Fiallo v. Bell, 430 U.S. 787 (1977).........................................7
Florida v. Harris, 133 S. Ct. 1050 (2013).....................................45
Gerstein v. Pugh, 420 U.S. 103 (1975)....................................37, 40
Illinois v. Andreas, 463 U.S. 765 (1983)........................................32
Kleindienst v. Mandel, 408 U.S. 753 (1972).........................................7
Los Angeles Police Dep’t v. United Reported Publ'g Corp., 528 U.S. 32 (1999).........................................61
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Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 5 of 62
Maryland v. Pringle, 540 U.S. 366 (2003)........................................30
Miller v. United States, 357 U.S. 301 (1958)........................................21
Moody v. Daggett, 429 U.S. 78 (1976).........................................21
Nevada v. Hicks, 533 U.S. 353 (2001)........................................21
Printz v. United States, 521 U.S. 898 (1997)........................................22
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).........................................4
Reno v. Flores, 507 U.S. 292 (1993)........................................38
Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)........................................28
Tafflin v. Levitt, 493 U.S. 455 (1990)........................................22
United States v. Di Re, 332 U.S. 581 (1948)....................................21, 25
United States v. Hensley, 469 U.S. 221 (1985)....................................32, 33
United States v. Salerno, 481 U.S. 739 (1987)........................................45
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)........................................48
Zadvydas v. Davis, 533 U.S. 678 (2001)........................................40
Other Federal Cases
Babula v. INS, 665 F.2d 293 (3d Cir. 1981)................................39
- iii -

Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 6 of 62
Bell v. City of Chicago, 835 F.3d 736 (7th Cir. 2016)...............................46
Castro v. United States Dep't of Homeland Sec., 835 F.3d 422 (3d Cir. 2016).................................7
Chavez v. City of Petaluma, No. 14-CV-5038, 2015 WL 6152479 (N.D. Cal. Oct. 20, 2015)..................................43
Chung Young Chew v. Boyd, 309 F.2d 857 (9th Cir. 1962)................................8
Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177 (N.D. Cal. 2009)......................11
Duamutef v. INS, 386 F.3d 172 (2d Cir. 2004)................................14
Furrow v. U.S. Bd. of Parole, 418 F. Supp. 1309 (D. Me. 1976).............................6
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2013).............................5, 20
Garcia v. Speldrich, No. 13–CV–3182, 2014 WL 3864493 (D. Minn. Aug. 6, 2014)....................................34
Gardner v. Cal. Highway Patrol, No. 2:14-CV-2730, 2015 WL 4456191 (E.D. Cal July 20, 2015)...................................43
Gonzales v. Peoria, 722 F.2d 468 (9th Cir. 1983)...............................23
Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999)..............................23
In re Joseph, 22 I. & N. Dec. 799 (BIA 1999).............................39
In re Lehder, 15 I. & N. Dec. 159 (BIA 1975)..............................8
Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984)..............................39
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Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 7 of 62
La. Forestry Ass’n, Inc. v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir. 2014).................................7
Liu v. Phillips, 234 F.3d 55 (1st Cir. 2000)................................34
Marsh v. United States, 29 F.2d 172 (2d Cir. 1928).................................23
Miranda–Olivares v. Clackamas Cnty., No. 3:12–cv–02317–ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014).................................13, 31
Puccini v. United States, No. 96-2402, 1996 WL 556987 (N.D. Ill. Sept, 26, 1996).................................43
Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995)................................40
Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013)...............................26
Slavik v. Miller, 89 F. Supp. 575 (W.D. Pa. 1950).............................8
Spinella v. Esperdy, 188 F. Supp. 535 (S.D.N.Y. 1960)...........................39
United States v. Celio, 945 F.2d 180 (7th Cir. 1991)...............................33
United States v. Chaklader, 987 F.2d 75 (1st Cir. 1993).................................6
United States v. Female Juvenile, A.F.S., 377 F.3d 27 (1st Cir. 2004).................................5
United States v. Garcia-Martinez, 228 F.3d 956 (9th Cir. 2000)...............................41
United States v. Janik, 723 F.2d 537 (7th Cir. 1983)...............................32
United States v. Mejia-Chicas, 287 Fed. App’x 830 (11th Cir. 2008)........................47
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United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016)...............................46
United States v. Ovando-Garzo, 752 F.3d 1161 (8th Cir. 2014)..........................27, 30
United States v. Quintana, 623 F.3d 1237 (8th Cir. 2010)..........................27, 29
United States v. Ramirez, 473 F.3d 1026 (9th Cir. 2007)..............................34
United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976)..............................33
United States v. Rodriguez, 831 F.2d 162 (7th Cir. 1987)...............................33
United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001).............................23
United States v. Tejada, 255 F.3d 1 (1st Cir. 2001).................................42
United States v. Uribe-Rios, 558 F.3d 347 (4th Cir. 2009)................................5
United States v. Williams, 627 F.3d 247 (7th Cir. 2010)...............................33
United States v. Winter, 730 F.2d 825 (1st Cir. 1984)................................6
Supreme Judicial Court Cases
Commonwealth v. Carr, 464 Mass. 855 (2013)........................................5
Commonwealth v. Gullick, 386 Mass. 278 (1982).......................................32
Commonwealth v. Marinho, 464 Mass. 115 (2013).......................................16
Commonwealth v. Pon, 469 Mass. 296 (2015).......................................45
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Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 9 of 62
Commonwealth v. Stewart, 469 Mass. 257 (2014).......................................30
Commonwealth v. Storey, 378 Mass. 312 (1979).......................................30
Commonwealth v. Upton, 394 Mass. 363 (1985)........................................3
Lockhart v. Attorney Gen., 390 Mass. 780 (1984).......................................46
US Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421 (2004).......................................16
Other Massachusetts Cases
Commonwealth v. Gant, 51 Mass. App. Ct. 314 (2001)...............................32
Commonwealth v. Peters, 48 Mass. App. Ct. 15 (1999)................................32
Other States' Cases
Andrews v. State, 962 So. 2d 971 (Fla. Dist. Ct. App. 2007)...................6
In re Korner, 50 Cal. App. 2d 407 (1942)..................................8
People v. Xirum, 993 N.Y.S.2d 627 (N.Y. Sup. Ct. 2014)..................31, 35
Smith v. State, 719 So. 2d 1018 (Fla. Dist. Ct. App. 1998).................35
State v. Rodriguez, 317 Or. 27 (1993)..........................................39
Public Laws
Pub. L. No. 104–208........................................11
Federal Statutes
6 U.S.C. § 202..............................................7
6 U.S.C. § 291..............................................7 - vii -

Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 10 of 62
6 U.S.C. § 557..............................................7 8 U.S.C. § 1101.......................................4, 7, 8 8 U.S.C. § 1103(a)(5)....................................7, 8 8 U.S.C. § 1226........................................passim 8 U.S.C. § 1227.............................................7 8 U.S.C. § 1229a...........................................37 8 U.S.C. § 1231..................................2, 8, 14, 16 8 U.S.C. § 1252.............................................7 8 U.S.C. § 1252c...........................................24 8 U.S.C. § 1357........................................passim 28 U.S.C. § 517.............................................1
Federal Regulations 8 C.F.R. § 241.4...........................................16 8 C.F.R. § 242.2...........................................11 8 C.F.R. § 287.5(c)....................................12, 37 8 C.F.R. § 287.7.......................................passim 8 C.F.R. § 1003.19.........................................39
Federal Register 27 Fed. Reg. 8487...........................................9 47 Fed. Reg. 47168..........................................9 49 Fed. Reg. 38719..........................................9 53 Fed. Reg. 9281..........................................11 53 Fed. Reg. 9283-84.......................................11 62 Fed. Reg. 10312.........................................11
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62 Fed. Reg. 10392.........................................11 Legislative History
Cong. Rec. H6716-03........................................10 Miscellaneous
"FY 2016 ICE Immigration Removals,” U.S. Immigration and Customs Enforcement, https://www.ice.gov/ removalstatistics/2016#wcm-survey-target-id (last visited Mar. 27, 2017) ...................................................... 42 “Infographics 2015,” U.S. Dep’t of Homeland Sec., https://www.dhs.gov/immigration-statistics/visualization/2015 (last visited Mar. 27, 2017)...............................42 U.S. Immigration and Customs Enforcement, Policy 10074.2, Issuance of Immigration Detainers by ICE Immigration Officers available at https://www.ice.gov/detainer-policy (last visited March 27, 2017)....................................11
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The United States submits this brief pursuant to: (a) the Court’s solicitation of amicus briefs in Commonwealth v. Lunn, SJC-12276 (Feb. 8, 2017), and (b) 28 U.S.C. § 517.
INTEREST OF AMICUS CURIAE The issues raised by this case deal directly with the Federal Government’s broad power over immigration and the status of aliens. Although the Federal power to determine immigration policy is well settled, it is equally settled that in our system of dual sovereignty the Federal Government depends upon the cooperation of State and local law enforcement agencies to help identify, apprehend, and detain removable aliens in order to effectuate their removal and ensure that they do not abscond from Federal law enforcement. Immigration detainers are a vital part of this process because they request local law enforcement agencies (1) to inform Federal immigration authorities prior to the release of a removable alien from custody and (2) to hold the alien for no more than 48 hours so that Federal immigration authorities may assume custody. See 8 C.F.R. § 287.7(a), (d). It is not uncommon under our system of governance for State and local law enforcement agencies to locate and detain removable aliens in response to Federal requests for assistance. This cooperation is necessary to preserve the
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Federal Government’s ability to enforce the immigration laws and ensure that criminal aliens and those likely to abscond are promptly removed from the United States. Indeed, Congress specifically requires that certain criminal aliens be detained pending their removal from the United States. See 8 U.S.C. §§ 1226(c), 1231. Without such cooperation, criminal aliens would be released back into the communities, endangering public safety and requiring even more dangerous at-large re-apprehensions of aliens prone to criminality or flight.
This Federal-State cooperation is lawful under the laws and Constitution of the United States. This is because State officers may temporarily detain an alien--like the Petitioner-Appellant in this case--subject to a final order of removal based on the Federal Government’s direction and authorization. In this case, such authorization came through a notice within the detainer that there is probable cause to believe the Petitioner-Appellant is subject to an order of removal and, as a result, is subject to arrest and mandatory detention during a (presumptively) 90-day “removal period.” 8 U.S.C. § 1231(a)(1). Moreover, detaining such aliens for no more than 48 hours so that immigration authorities can assume
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custody to effectuate their removal does not violate the United States Constitution.
Finally, amicus would like to inform the Court of new developments governing the issuance of immigration detainers. Even though they are not dispositive for this specific case, amicus believes these changes indicate that a facial ruling on the constitutionality of Federal immigration detainers would be imprudent at this time.
STATEMENT OF THE ISSUES Amicus will address issues related to this Court’s solicitation for amicus briefs. Specifically, (1) whether a State may temporarily hold an alien subject to a final order of removal1 upon release from State custody in response to a Federal immigration detainer indicating that the alien is removable and requesting the State temporarily hold the alien for Federal immigration authorities; (2) whether the brief detention of an alien subject to a Federal immigration detainer indicating that he is subject to a final order of removal violates any Federal constitutional rights;2 and (3)
1 While there are other bases for immigration detainers (as set forth on the detainer form) that provide probable cause, the United States believes (discussed below) that this Court should limit its decision to the circumstances at issue in this case--an alien subject to a final order of removal.
2 Amicus acknowledges that art. 14 of the Declaration of
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whether this case, which is moot as to Petitioner-Appellant,
is appropriate for addressing immigration detainers’
constitutionality for individuals not similarly situated.
STATEMENT OF THE CASE
I. STATUTORY AND REGULATORY BACKGROUND
An “immigration detainer” is a document by which the
U.S. Department of Homeland Security (“DHS”) provides notice
of its intent to assume custody of a removable alien detained
in the custody of another law enforcement agency.3 See 8
C.F.R. § 287.7(a); see also U.S.C. § 1101(a)(3) (an “alien”
is any person who is neither a citizen nor a national of the
Rights “provides more substantive protection to criminal defendants than does the Fourth Amendment,” Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (emphasis added), and that this Court “ha[s] a duty to come to its own conclusion about the meaning of [the Commonwealth’s] Constitution,” Commonwealth v. Gonsalves, 429 Mass. 658, 681 (1999) (Fried, J., dissenting). As the United States’ relevant expertise lies with the Fourth Amendment and Federal immigration law, this brief is limited to a discussion of those topics. Cf. R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) (emphasizing the importance of avoiding “needless friction with state policies”).
3 On March 24, 2017, DHS’s component agency, U.S. Immigration and Customs Enforcement (“ICE”), released new procedures regarding ICE’s issuance of immigration detainers. See U.S. Immigration and Customs Enforcement, Policy 10074.2, Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), available at https://www.ice.gov/detainerpolicy. These were accompanied by a revised immigration detainer form. See id. As described in more detail below, these changes make this case a poor vehicle for addressing the constitutionality of immigration detainers writ large.
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United States). According to federal regulations, the
detainer “serves to advise another law enforcement agency
that the Department seeks custody of an alien presently in
the custody of that agency, for the purpose of arresting and
removing the alien.” 8 C.F.R. § 287.7(a). As that regulation
explains, an immigration detainer is a request--not a
directive--for other Federal, State, local, or tribal law
enforcement agencies to inform DHS of a pending release date
for the alien in question, and to hold the alien for up to 48
hours to allow ICE to assume custody.4
DHS’s standard detainer form (known as a “Form I-247”)
sets forth the basis for the agency’s determination that it
possesses probable cause to believe that the subject is a
4 See Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2013) (finding that an immigration detainer is in the nature of a “request,” rather than a mandate, and Tenth Amendment concerns are therefore not implicated); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009) (same)(citing 8 C.F.R. § 287.7(d)); United States v. Female Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) (same); see also Carchman v. Nash, 473 U.S. 716, 719 (1985)(defining a criminal detainer as “a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent”); Commonwealth v. Carr, 464 Mass. 855, 862 (2013) (describing Boston police officers’ use of a criminal detainer); Black’s Law Dictionary 543 (10th ed. 2014) (defining detainers as “request[s] ... to a prison, jail, or asylum requesting either that a certain inmate be held for the agency or that the agency be notified a reasonable time before the inmate is released”).
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removable alien. For example, and most relevant to this case, the Form I-247D, which was in effect at the time DHS lodged it with Commonwealth authorities as to Mr. Lunn, indicated that a final order of removal had already been entered against him. See R.A. 35. Other federal agencies also use detainers as a way to hold individuals arrested by state or local law enforcement until they can be taken into custody. Such circumstances range from being absent without leave from the armed forces, see, e.g., Andrews v. State, 962 So. 2d 971, 973 (Fla. Dist. Ct. App. 2007)(recounting how a DD Form 553 was issued for the desertion of a military officer and Federal agents enlisted local police in the search of his residence and arrest), to parole and probation violations, see, e.g., United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993) (per curiam); Furrow v. U.S. Bd. of Parole, 418 F. Supp. 1309, 1312 (D. Me. 1976) (prisoner was granted parole by State board but not delivered into Federal custody pursuant to Federal detainer until four days later), to major felony offenses, see, e.g., United States v. Winter, 730 F.2d 825, 826 (1st Cir. 1984) (prisoner held by State pursuant to Federal detainer from December 14, 1981, when State granted prisoner parole, until January 21, 1982, when he was released to Federal custody).
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ICE and the legacy Immigration and Naturalization Service (“INS”)5 have long issued detainers pursuant to the country’s sovereign power to police its borders and exclude or deport aliens. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765-66 & n.6 (1972)(collecting cases and noting how “the Court’s general reaffirmations of this principle have been legion”); Castro v. DHS, 835 F.3d 422, 439 (3d Cir. 2016). Congress codified and consolidated this power in the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., which: (1) provides the Secretary of Homeland Security with the authority to enforce the immigration laws and “the power and duty to control and guard the borders and boundaries of the United States against the illegal entry of aliens,” id. at § 1103(a)(1), (5); (2) establishes certain categories of aliens who are barred from admission to the United States, id. at § 1182, or may be removed from the United States after their admission, id. at § 1227; (3) grants immigration
5 The INS was part of the Department of Justice. In 2002, however, Congress abolished the INS and transferred jurisdiction to implement the INA to the Secretary of Homeland Security. See 6 U.S.C. §§ 202, 291, 557; La. Forestry Ass’n, Inc. v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653, 659 (3d Cir. 2014). Accordingly, INA directives to the “Attorney General” now generally pertain to the Secretary of Homeland Security, with limited exceptions not relevant to issuance of an immigration detainer. See id.
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officials broad discretion as to their enforcement priorities, id. at § 1252; (4) instructs the Secretary of Homeland Security to “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the INA, id. at § 1103(a)(3); and (5), provides specific authority to arrest and detain certain aliens, id. at §§ 1226, 1231, 1357.
In light of this statutory backdrop, the Federal Government has regularly used detainers as a means of obtaining custody of aliens for purposes of removal (previously referred to as “deportation”) since at least the 1940s. See, e.g., In re Korner, 50 Cal. App. 2d 407, 408–09 (1942) (mentioning that INS had issued a detainer to state authorities). For example, in a 1950 decision, a federal district court addressed a challenge to the legality of a deportation order for an alien who was the subject of an immigration detainer requesting his delivery “to the custody of the immigration authorities at the time sentence is fulfilled in the state institute.” Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950), aff’d, 184 F.2d 575 (3d Cir. 1950) (per curiam); see also Chung Young Chew v. Boyd, 309 F.2d 857 (9th Cir. 1962) (INS issued detainer to federal
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prison authorities); In re Lehder, 15 I. & N. Dec. 159 (BIA 1975) (INS detainer requested that federal prison notify INS at least 30 days prior to his release). Federal Register notices throughout this time period also referenced “immigration detainers.” See Dep’t of Justice, Prescribing Regulations of the United States Board of Parole and Youth Correction Division of the Board, 27 Fed. Reg. 8487 (Aug. 24, 1962) (referring to “immigration detainers”); Dep’t of Justice, Bureau of Prisons, Control Custody, Care, Treatment, and Instruction of Inmates, 47 Fed. Reg. 47168 (Oct. 22, 1982) (referring to “deportation detainers”); Dep’t of Justice Office of Justice Assistance, Research & Stats., State Reimbursement Program for Incarcerated Mariel-Cubans, 49 Fed. Reg. 38719 (Oct. 1, 1984) (referring to Form I-247, “Immigration Detainer Notice”).
These cases and regulations illustrate the regular use of immigration detainers prior to 1986 to request that a law enforcement agency transfer an alien to INS custody at the completion of the alien’s criminal sentence and notify INS prior to the alien’s release. ICE today relies upon similar partnerships with state law-enforcement agencies to identify certain removable aliens.
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In 1986, Congress enacted the Anti-Drug Abuse Act, which, among other things, amended the INA to codify the longstanding use of immigration detainers by federal immigration officers, in part, for aliens arrested for “violation[s] of any law relating to controlled substances.” 8 U.S.C. § 1357(d). Rather than define immigration detainers or limit their contemporaneous usage, Congress instead mandated that immigration officers must promptly determine whether to issue a detainer for an individual who has been arrested for a controlled substance violation by a Federal, State, local, or tribal law enforcement agency if there was “reason to believe” that the individual arrested “may not have been lawfully admitted ... or is not lawfully present in the United States.” Id. at § 1357(d)(1)-(3).
Although this statutory mandate spoke specifically to arrests for controlled substance violations, it also presupposes the existence of the Federal Government’s general detainer authority, which is broader. In fact, this provision was added at the insistence of law enforcement officials who were agitated that the INS was not always filing detainers to take custody of aliens charged with drug-related offenses. See, e.g., 132 Cong. Rec. H6716-03 (daily ed. Sept. 11, 1986) (statement of Rep. Ackerman as read by Rep. Smith), at 1986
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WL 790075 (stating how the Act’s purpose, among other things, was to address “local law enforcement complaints concerning the INS’ inability to issue a judgment on a suspect’s citizenship status fast enough to allow the authorities to continue to detain him”); see also Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009) (“[N]othing in the statute ... purports to limit the issuance of immigration detainers to cases where an alien is arrested ... for a violation of any law relating to controlled substances.”).
The INS subsequently issued regulations governing the issuance of immigration detainers.6 Those regulations codified the agency’s existing authority to request other law enforcement agencies to temporarily maintain custody of the alien in order to permit assumption of custody by the INS. See 53 Fed. Reg. 9281, 9283-84 (Mar. 22, 1988).
The current regulations, promulgated after Congress rewrote much of the INA through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
6 INS and DHS have amended those regulations on a number of occasions. See, e.g., Dep’t of Justice, INS, Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, Interim Rule, 62 Fed. Reg. 10312, 10392 (Mar. 6, 1997); 8 C.F.R. §§ 242.2, 287.7 (1988).
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Pub. L. No. 104–208, 110 Stat. 3009-546 (Sept. 30, 1996),7
provide that “[a]ny authorized immigration officer may at any
time issue a Form I-247 ... to any other Federal, State, or
local law enforcement agency,” 8 C.F.R. § 287.7(a), and
identify the personnel who may issue immigration detainers
(such as deportation officers or immigration inspectors), 8
C.F.R. § 287.7(b)(1)-(8). These personnel are, under certain
conditions, authorized to make warrantless arrests for
violations of federal immigration law.8
The regulations also request that other agencies provide
DHS with “all documentary records and information” related to
the alien’s status; limit the period for which aliens may be
held at ICE’s request so that they may assume custody to 48
7 Among other things, Congress clarified through IIRIRA that nothing in the INA should be construed as preventing state or local officers “to cooperate ... in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” IIRIRA, Pub. L. No. 104–208, § 133, 110 Stat. 3009-564, codified in 8 U.S.C. § 1357(g)(10)(B).
8 See 8 U.S.C. § 1357(a)(2) (“Any officer or employee ... authorized under regulations prescribed by the [Secretary of Homeland Security] shall have power without warrant ... to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any ... law or regulation [governing the admission, exclusion, expulsion, or removal of aliens] and is likely to escape before a warrant can be obtained for his arrest[.]” (emphasis added)); see also 8 C.F.R. § 287.5(c) (listing immigration officers with authority to make warrantless arrests); 8 C.F.R. § 287.7(b) (listing immigration officers with authority to issue detainers).
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hours (excluding weekends and federal holidays);9 and specifies that DHS is not financially responsible for an alien’s detention unless it issues a detainer for, or assumes custody of, the alien. See 8 C.F.R. § 287.7(c)-(e). The immigration detainer thus enables ICE to notify other Federal, State, or local agencies that it has determined that there is probable cause to believe the subject is a removable alien based upon: (1) a final order of removal against the alien; (2) the pendency of ongoing removal proceedings against the alien; (3) biometric confirmation of the alien’s identity and a records match in federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks lawful immigration status or, notwithstanding such status, is removable under Federal immigration law; or (4) where the alien’s voluntary statements to an immigration officer, or other reliable evidence, indicate that the alien either lacks lawful immigration status or, notwithstanding such status, is removable. See generally R.A. 16–20.10
9 The Form I-247D used in Mr. Lunn’s case (as well as the Form I-247A) only requested his detention up to 48 hours, including weekends and Federal holidays.
10 Prior versions of the Form I-247 indicated that ICE had initiated an investigation to determine whether the alien was subject to removal, rather than had probable cause to believe
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Most relevant here, where “an alien [ha]s [been] ordered removed, the [Secretary of Homeland Security] shall remove the alien from the United States within a period of 90 days,” referred to as the “removal period.” 8 U.S.C. § 1231(a)(1)(A). Thus, in order to ensure prompt removal, Congress made clear that an alien subject to a final order of removal shall be detained pending effectuation of that order. See 8 U.S.C. § 1231(a)(2)(“During the removal period, the [Secretary of Homeland Security] shall detain the alien.”). Congress did not wish to interfere with Federal or State criminal processes, however, see, e.g., Duamutef v. INS, 386 F.3d 172, 179 (2d Cir. 2004), and thus “the [Secretary of Homeland Security] may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment,” 8 U.S.C. § 1231(a)(4)(A). Accordingly, Congress required the agency to take custody of such aliens after their release from confinement, at which time, as relevant here, the “removal period” begins to run. Id. at § 1231(a)(1)(B)(iii) (“removal period begins ... [on] the
the alien was already subject to removal. See, e.g., Miranda– Olivares v. Clackamas Cnty., No. 3:12–cv–02317–ST, 2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014). However, those versions of the Form I-247 that are still operative (that is, the Form I-247A, Form I-247D, Form I-247N, and Form I-247X) no longer use this language.
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date the alien is released from detention or confinement”); see also 8 U.S.C. § 1226(c)(1) (providing that the Secretary of Homeland Security is to take certain deportable aliens into custody “when the alien is released”).
Finally, on March 24, 2017, per Secretary Kelly’s direction, ICE directed the retirement of Form I-247D, Form I-247N, and Form I-247X to be replaced with a consolidated detainer form, Form I-247A, effective on April 2, 2017 (attached as Exhibit A). This consolidated detainer form, as did the prior Form I-247D, requests that recipient law enforcement agencies (1) notify DHS as early as practicable before a removable alien is released from criminal custody and (2) maintain custody of the alien for a period not to exceed 48 hours beyond the time he would otherwise have been released to allow DHS to assume custody (without any exception for Saturdays, Sundays, and holidays). In addition, Form I-247A, as did the prior Form I-247D, sets forth the basis of the issuing immigration officer’s probable cause to believe that the subject is a removable alien and advises that a copy of the form must be served on the alien in order for the detainer to take effect,. Furthermore, ICE Policy No. 10074.2, also released March 24, 2017, directs that all immigration detainers issued to removable aliens must now be
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accompanied by either a Form I-200 (Warrant for Arrest of Alien), signed by an authorized immigration officer, or a Form I-205 (Warrant of Removal), signed by an authorized immigration officer. See U.S. Immigration and Customs Enforcement, “Detainer Policy” and accompanying hyperlinks (Mar. 24, 2017), available at https://www.ice.gov/detainerpolicy.
II. PROCEDURAL BACKGROUND Petitioner-Appellant Sreynoun Lunn was issued a final order of removal on June 25, 2008.11 In re Lunn (Imm. Ct. June 25, 2008) (attached as Exhibit B). On October 16, 2008 he was released from ICE custody on an order of supervision pending his removal because his country of origin declined to provide travel documents. See 8 U.S.C. § 1231(a)(3); 8 C.F.R. § 241.4. Nearly ten years later, Mr. Lunn was arrested on charges of robbery in violation of Massachusetts law. See R.A. 37-38; see also R.A. 10. The same day of the arrest, ICE lodged an immigration detainer with relevant State authorities. R.A. 35. That detainer indicated that “probable
11 This Court “may take judicial notice of the court papers filed in related cases.” US Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421, 425 n.8 (2004); see also Commonwealth v. Marinho, 464 Mass. 115, 140-41 n.12 (2013) (Duffly, J., concurring in part and dissenting in part) (noting how “court[s] may take judicial notice of Federal immigration statutes and ... decisional law”).
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cause exists that [Mr. Lunn] is a removable alien” based on: (1) “a final order of removal against the subject” and (2) “biometric confirmation of the subject’s identity and a records check of federal databases that affirmatively indicated, by themselves or in addition to other reliable information, that the subject either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.” Id.
This version of the Form I-247D at issue requested that local law enforcement: (1) serve a copy of the detainer form on Mr. Lunn, (2) “as early as possible prior to the time you otherwise would release [Mr. Lunn]” to notify ICE, and (3) “maintain custody of [Mr. Lunn] for a period NOT TO EXCEED 48 HOURS beyond the time [he] would otherwise have been released from your custody to allow [ICE] to assume custody.” Id. The form further clarified that the request would be operative only if local law enforcement “serve[d] a copy of this form on [Mr. Lunn].” The record appears to reflect that such service occurred. R.A. 38. Thereafter, Mr. Lunn declined to post bail and remained in county custody pending trial. Id.
On October 24, 2016, Mr. Lunn was arraigned in the Central Division of the Boston Municipal Court on charges of
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unarmed robbery. See R.A. 10-11. The criminal charges against Mr. Lunn were dropped on February 6, 2017 for lack of prosecution. R.A. 12. Mr. Lunn filed a state habeas petition requesting that the trial court order his release and not honor the immigration detainer lodged against him October 23, 2016. Ibid. The trial court declined to do so, ordering that he be held in custody pursuant to the immigration detainer.12 Ibid. “[S]everal hours” after Mr. Lunn was to be released from state custody following dismissal of the charges against him, ICE took him into custody. R.A. 14.
On February 7, 2017, Mr. Lunn filed an emergency petition for relief with this Court, asking to be released. R.A. 50. Justice Lenk issued an order reserving and reporting the matter to the full Court, observing that while the matter was moot as to Mr. Lunn given his release from state custody, “the case raises important, recurring, time-sensitive issues that will likely evade the full [C]ourt’s review in future cases” and anticipated that the full Court would address the
12 While here, the trial court, rather than State or local law enforcement officials, relied upon the immigration detainer, it would be contrary to federal immigration law to construe 8 C.F.R. § 287.7 as requiring submission by DHS of a detainer to a State trial court. A contrary conclusion would present serious federal preemption issues. See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012).
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legality of Mr. Lunn’s brief detention prior to his transfer to immigration custody “despite its mootness.” R.A. 71.
Petitioner-Appellant’s brief contends (1) that Massachusetts law does not authorize the Commonwealth to hold him in custody after the expiration of his criminal custody and that Federal law cannot authorize such a detention either; (2) that, notwithstanding that his Form I-247D indicated probable cause existed regarding how he had already been ordered removed, his detention violated the Fourth Amendment because detainers are not issued by neutral or detached magistrates, and (3) that the form is insufficiently detailed to support any such finding of probable cause. Br. of Pet.-App. at 14-44. On February 8, 2017, the full court requested amicus briefs. R.A. 72.
SUMMARY OF THE ARGUMENT In our system of dual sovereignty, the United States’ ability to enforce immigration law depends upon the cooperation of State sovereigns and their municipal law enforcement agencies. Since at least the 1940s, the linchpin of this cooperation has been the Federal immigration detainer, a request that local law enforcement inform immigration authorities prior to releasing removable aliens
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from custody and to hold them for no more than 48 hours so that Federal immigration authorities may assume custody.
It is settled law that the United States Constitution does not preclude State officers from cooperating with Federal authorities by taking a suspect into temporary custody for violating Federal law--including immigration law. So long as State officers exercise their inherent arrest authority in response to requests for assistance from the Federal Government, such cooperation is permitted. Furthermore, State officers may rely on immigration officers’ determinations of probable cause that an alien is removable.
The fact that an immigration detainer does not comply with the more rigorous Fourth Amendment requirements applicable in the criminal context does nothing to alter this outcome. As the Supreme Court explained nearly sixty years ago, there is “overwhelming historical legislative recognition of the propriety of administrative arrest[s] for deportable aliens[.]” Abel v. United States, 362 U.S. 217, 233 (1960). The requirement of a finding of probable cause by a neutral magistrate has thus never applied to immigration detention, regardless of whether that detention is prompted by an immigration detainer or some other basis.
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A conclusion to the contrary-–ignoring the extensive history of the limited nature of the Fourth Amendment in the immigration context--would completely undermine any effective immigration enforcement system, which must process the hundreds of thousands of aliens arrested for immigration violations each year. Such similar considerations undergird other forms of legal process that authorize temporary detentions, including detainers or holds issued by nonjudicial entities, in numerous contexts, and are a necessary component of any effective civil immigration enforcement scheme.
Finally, although the parties ask the Court to issue a sweeping ruling addressing the legality of the use of detainers in any context, the sole issue before the Court is a detainer issued to a criminal alien subject to a final order of removal. As the detainer policy and underlying statutes at issue have applications in many circumstances not at issue in this appeal, the Court should decline the parties’ invitation and, to the extent it views the case as justiciable, limit its ruling to aliens similarly situated to Mr. Lunn.
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ARGUMENT I. STATES MAY TEMPORARILY HOLD ALIENS SUBJECT TO A FINAL
ORDER OF REMOVAL IN RESPONSE TO AN IMMIGRATION DETAINER No party or amicus disputes that immigration detainers are voluntary requests, rather than mandatory commands. As explained below, Petitioner-Appellant points to no affirmative Massachusetts law restricting the Commonwealth’s law enforcement agencies’ authority to cooperate with such requests and to detain removable criminal aliens under their own inherent authority to enforce Federal law at the request or direction of the Federal Government. Just as State police officers are allowed to cooperate with another State’s request to detain a criminal temporarily to enable the other State to take custody in an orderly manner, State officials may cooperate with the Federal Government’s requests to briefly detain aliens (such as Mr. Lunn) who have already been ordered removed from this country, and thereby to enable the Federal Government to take custody in an orderly and peaceful manner.
A. Detainers Are Voluntary. Although the parties and other amici devote much of their briefing to the question of whether detainers are mandatory or voluntary, the Court need not dwell on that issue. The United States agrees that immigration detainers
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are not mandatory. Rather, as the governing regulation and case law indicate, they are “requests” upon State law enforcement to voluntarily assist Federal immigration authorities. The regulation provides that a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a) (emphasis added).13 In light of this language, courts have construed immigration detainers to be no more than a request. See, e.g., Galarza, 745 F.3d at 644 (“[R]eading § 287.7 to mean that a federal detainer filed with a state or local [agency] is a command to detain an individual on behalf of the federal government, would violate the anti-commandeering doctrine of the Tenth Amendment.”); see supra n.4; cf. Moody v. Daggett, 429 U.S. 78, 80 n.2 (1976) (noting in the context of criminal detainers that where, as here, “two autonomous jurisdictions are involved, ... a detainer is a matter of comity”).
13 While it is true that 8 C.F.R. § 287.7(d) includes “shall” language that could be read as binding, this actually defines the maximum length of time that an alien with an immigration detainer may be held. It does not require local law enforcement agencies to hold anyone.
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B. States Have Inherent Authority To Assist In The Enforcement Of Federal Law.
The Supreme Court has long recognized that the United States Constitution does not preclude State officers from cooperating with Federal authorities by taking a suspect into custody for violating Federal law. See United States v. Di Re, 332 U.S. 581, 589 (1948)(“authority of State officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of State law”); Miller v. United States, 357 U.S. 301, 305-06 (1958) (lawful for “state peace officers” to make “an arrest for violation of federal law”). The Judiciary Act of 1789 even recognized the authority of a state court to “arrest[] and imprison[]” a person suspected of a Federal offense, to be held for later trial by an appropriate Federal court. See Act Sept. 24, 1789, ch. 20, § 33, 1 Stat. 91; Di Re, 332 U.S. at 589 n.8 (quoting Judiciary Act provision); Nevada v. Hicks, 533 U.S. 353, 366-67 (2001) (“‘Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States’ [.]” (quoting Tafflin v. Levitt, 493 U.S. 455, 458 (1990))).
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Contemporaneous writings suggest, for example, that the Framers envisioned the Federal Government making use of state officials generally and, in particular, to enforce tax laws. See Printz v. United States, 521 U.S. 898, 910 (1997) (discussing The Federalist Nos. 27, 36, 45 and noting “The Federalist’s more general observations that the Constitution would ‘enable the [national] government to employ the ordinary magistracy of each [State] in the execution of its laws’”). The Court explained that such statements “appear to rest on the natural assumption that the States would consent to allowing their officials to assist the Federal Government ... an assumption proved correct by the extensive mutual assistance the States and Federal Government voluntarily provided one another in the early days of the Republic[.]” Id. at 910 (citing FERC v. Mississippi, 456 U.S. 742, 796, n.35 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part)).
The United States Constitution has therefore always been understood to permit States to assist in Federal Government’s enforcement of Federal law, including with the arrest or detention of Federal immigration violators in cooperation with the Federal Government. See, e.g., United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001);
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Gonzales v. Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (holding that Federal law does not preclude local enforcement of the criminal provisions of the INA), overruled on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999); United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983) (Posner, J.); see also Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928) (L. Hand, J.) (“[I]t would be unreasonable to suppose that [the Federal Government’s] purpose was to deny itself any help that the states may allow.”). And this understanding comports with, and is reflected by, the long history of immigration detainers being sent to State and local law enforcement agencies (as discussed above).
Given Congress’s pre-eminent authority over immigration matters vis-à-vis the States, see, e.g., De Canas v. Bica, 424 U.S. 351, 354-55 (1976), Congress has preempted state activity with regard to certain provisions of immigration law, by carefully circumscribing when state officials may “perform the functions of an immigration officer” in other circumstances, Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). See also 8 U.S.C. § 1103(a)(10)(permitting extension of DHS immigration authority to State officers in the event of an “imminent mass influx of aliens off the
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coast of the United States”); id. at § 1252c (permitting State officers to have authority to arrest and detain aliens unlawfully present after being convicted of a felony and being deported or leaving the United States (after confirming their status with DHS), until DHS can assume custody); id. at § 1324(c) (providing that “all other officers whose duty it is to enforce criminal laws” may make arrests for violating bar on bringing in and harboring certain aliens)).
However, contrary to the view advanced by Mr. Lunn, see, e.g., Br. of Pet.-App. at 22-23, the existence of these explicit statutory authorities in the INA does not mean that states lack inherent authority to make arrests based on federal immigration law in cooperation with the Federal Government. Indeed, the Supreme Court’s decision in Arizona emphatically rejects that view. 132 S. Ct. at 2509-10. There, the Court discussed Section 1357(g)(10)(B), which permits State and local officers to cooperate with the Federal Government, without a written agreement, “in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Arizona, 132 S. Ct. at 2507.
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Section 1357(g) describes the enforcement authority of immigration officers, and elsewhere permits the Federal Government and States to voluntarily enter into written agreements whereby State officials may perform the functions of Federal immigration enforcement officials. See 8 U.S.C. § 1357(g)(1). Congress was careful to avoid the misimpression that States could not assist immigration enforcement in cooperation with the Federal Government, see, e.g., Di Re, 332 U.S. at 589-91, absent a formal agreement to do so, by explicitly providing:
Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State ... to cooperate with the [Department of Homeland Security] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. § 1357(g)(10)(B). The Arizona majority opinion gave examples of such cooperation, including “provid[ing] operational support in executing a warrant,” “allow[ing] federal immigration officials to gain access to detainees held in state facilities” and “responding to requests for information about when an alien will be released from their custody.” 132 S. Ct. at 2507 (citation omitted). These forms of cooperation are to be distinguished from the Arizona statute that was at issue in that case, which permitted
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“state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government,” and held that such unilateral State enforcement did not fall within the cooperative enforcement authority contemplated by section 1357(g). See 132 S. Ct. at 2507 (emphasis added).
Since Arizona, Federal appellate courts have held that State officials’ engaging in the brief detention of suspected immigration-law violators, even absent a written agreement, is lawful and consistent with Arizona where such officers “arrest aliens for civil immigration violations” at the “direction or authorization by federal officials.”14 Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 46667 (4th Cir. 2013) (recognizing how local police may detain and transport an alien after they have received express direction from federal officials). For example, in United States v. Ovando-Garzo, the Eighth Circuit held that a state trooper's identification of unlawfully present aliens, communication with the U.S. Border Patrol (another DHS component agency), and detention of those aliens at the
14 And, at the very least, jurisdictions that have signed a written agreement under 8 U.S.C. § 1357(g) to have their officers perform functions of Federal immigration officers can honor ICE detainer requests.
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request of the Border Patrol until it could take them into custody, were not unilateral and did not exceed the scope of the “cooperation” authority under Section 1357(g)(10)(B). 752 F.3d 1161, 1164-65 (8th Cir. 2014) (citing Arizona’s discussion of Section 1357(g)(10)). Similarly, in United States v. Quintana, the court held that a State officer was authorized under Section 1357(g)(10)(B) to detain an alien at DHS’s behest who could not produce identity documentation and thus was suspected of being unlawfully present, until DHS could take him into custody the following day. 623 F.3d 1237, 1242 (8th Cir. 2010).
As Arizona and its progeny make clear, Federal law does not preempt a State’s inherent authority to make arrests based on violations of civil immigration law, so long as such arrests respond to requests for assistance from the Federal Government and are not otherwise preempted.15 See 132
15 ICE relies upon numerous partnerships with State lawenforcement agencies to identify certain removable aliens. Specifically, State and local arrestees’ fingerprints are voluntarily sent to the Federal Bureau of Investigation’s (“FBI”) National Crime Information Center, which uses its Integrated Automatic Fingerprint Identification System to send those fingerprints to ICE’s Automated Biometric Identification System. This automatically notifies ICE whenever the fingerprints of a State or local arrestee match those of a person previously encountered and fingerprinted by immigration officials. It also notifies ICE when the individual’s fingerprints do not match fingerprint records in ICE records. ICE will then review other databases to
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S. Ct. 2507 (discussing examples). And that is precisely what a State or local law enforcement officer does when he or she voluntarily complies with the Federal Government’s requests contained in an immigration detainer. Many States have consequently chosen to work with the Federal Government by sending biometric information (such as fingerprints) of all persons booked in their local jails, allowing local enforcement agencies to better understand whom they are detaining. See supra n.14. Under such circumstances, unless a State government has affirmatively cabined its own police power, its officers may help the Federal Government with immigration arrests. Arizona, 132 S. Ct. at 2501 (“In preemption analysis, courts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’” (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947))).
C. Immigration Detainers Provide Probable Cause, Such As Where The Individual Has Previously Been Ordered Removed, For State Officers To Detain Someone.
Again, Mr. Lunn was issued a final order of removal on June 25, 2008. See Exhibit B. Under these circumstances, the detainer provided the Commonwealth with probable cause to
determine whether the person is an alien present in the United States illegally or is otherwise removable.
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believe that he was a removable alien because an Immigration Judge had already entered a final order of removal against him almost a decade ago. Ibid. Simply put, that is probable cause under the Fourth Amendment. See Commonwealth v. Storey, 378 Mass. 312, 321 (1979) (“[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.”).
This Court and the Supreme Court have repeatedly noted how probable cause is a fluid, fact-intensive inquiry that is “incapable of precise definition,” but all conceptions of probable cause boil down to a requirement of “a reasonable ground for belief of guilt” that “must be particularized with respect to the person to be searched or seized.” Maryland v. Pringle, 540 U.S. 366, 370-71 (2003)(internal quotation marks and citations omitted); Commonwealth v. Stewart, 469 Mass. 257, 262 (2014). ICE only issues detainers when there is probable cause to arrest an individual on the basis that he is a removable alien.16 That standard was met in this case.
16 Beginning on April 2, 2017, all ICE detainers will be issued with a warrant under 8 U.S.C. § 1226. Nevertheless, the statutory standard for immigration enforcement--including
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The amount of particularized evidence in this case
equals, if not surpasses, the evidence supporting the valid
probable-cause determinations upheld by the Eighth Circuit
in both Ovando-Garzo and Quintana. In Ovando-Garzo, a State
officer relied upon the aliens’ admission of unlawful
presence, but did not yet have any final orders of removal
against them. 752 F.3d at 1162-64. And in Quintana, a State
trooper validly detained the alien until DHS officers could
arrive solely on the basis of the trooper and the DHS
agent’s immediate inability to verify the alien’s identity
and immigration status on the basis of his proffered
identification document. 623 F.3d at 1238.
state officers upon written agreement or in cooperation with federal authorities, see 8 U.S.C. § 1357(g)--to arrest someone for an immigration offense without a warrant requires that the officer have “reason to believe” that (1) “the alien so arrested is in the United States in violation of any such law or regulation” concerning the admission, exclusion, expulsion, or removal of aliens, (2) “is likely to escape before a warrant can be obtained for his arrest,” and (3) the alien is taken without delay for examination by DHS. See id. at § 1357(a)(2) & (d) (providing for detention by State official who has “reason to believe” alien is unlawfully present and “expeditiously informs” DHS, which decides to issue a detainer); 8 C.F.R. § 287.7(a) (“The detainer is a request that [a local law enforcement] agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.”) “Because the Fourth Amendment applies to arrests of illegal aliens, the term ‘reason to believe’ in § 1357(a)(2) means constitutionally required probable cause.” Quintana, 623 F.3d at 1239 (collecting cases).
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In a similar vein, other courts have ruled that a final order of removal against an alien establishes probable cause. For example, the Court in Clackamas Cnty.–-a case upon which the parties and amici rely heavily--specifically explained that probable cause exists “when a[n alien] is ... subject to a warrant for arrest or an order of removal or deportation.” 2014 WL 1414305, at *11; accord People v. Xirum, 993 N.Y.S.2d 627, 630 (N.Y. Sup. Ct. 2014) (“[A]n order of removal or deportation provides the [State corrections department] with probable cause to hold [the] defendant for DHS.”).
D. State Officers May Rely Upon A Federal Officer’s Determination That Probable Cause Exists That An Individual Is A Removable Alien, Such As Where The Individual Has Previously Been Ordered Removed.
Commonwealth officers also may rely upon Federal officers’ communications that probable cause exists for an alien’s removability. Specifically, the information DHS obtained concerning Mr. Lunn’s unlawful status may be imputed to State officers under a straightforward application of the “fellow officer” or “common knowledge” doctrine, which courts have uniformly extended to the immigration enforcement context.
Under this principle, the validity of a search or seizure “turns on whether the officers who issued the flyer
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[identifying the suspect] possessed probable cause to make the arrest. It does not turn on whether those relying on the flyer were themselves aware of the specific facts which led their colleagues to seek their assistance.” United States v. Hensley, 469 U.S. 221, 231 (1985) (citing Whiteley v. Warden, 401 U.S. 560, 564, 568 (1971)). “[W]here law enforcement authorities are cooperating ... the knowledge of one is presumed shared by all.” Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983); accord Commonwealth v. Gullick, 386 Mass. 278, 283 (1982) (probable cause formed on the basis of collective observations of police); Commonwealth v. Gant, 51 Mass. App. Ct. 314, 318 (2001) (“Both officers were engaged in a cooperative effort ... [and] we may consider the complete picture.”); Commonwealth v. Peters, 48 Mass. App. Ct. 15, 19 (1999) (observations of trooper communicated to another, and even if not communicated, are imputed to the other).
This doctrine recognizes that effective law enforcement requires that officers be able to “‘act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.’” Hensley, 469 U.S. at 231
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(quoting United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976)). Thus, searches and seizures by local officers at the request of federal Drug Enforcement Agency investigators are regularly upheld against Fourth Amendment challenges where the “DEA agents asked local law enforcement officers to stop a specifically-identified vehicle, and the local officers had no knowledge of the facts underlying the DEA’s probable cause.” United States v. Williams, 627 F.3d 247, 253 (7th Cir. 2010); United States v. Celio, 945 F.2d 180, 183 (7th Cir. 1991) (even though state police’s stop and search of a vehicle was based only on “bald assertion” by DEA that “they suspected drug trafficking,” DEA’s sufficient basis for probable cause could be imputed to cooperating local officials); United States v. Rodriguez, 831 F.2d 162, 165-66 (7th Cir. 1987) (although officer who made the stop had no knowledge of the factual basis and DEA offered only a “skeletal” request for assistance, the “state trooper was ... acting as an extension or agent of the DEA agent and she could act on the DEA agent’s suspicions”). As the Ninth Circuit has explained, “[t]he accepted practice of modern law enforcement is that an officer often makes arrests at the direction of another law enforcement officer even though the arresting officer himself lacks actual,
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personal knowledge of the facts supporting probable cause.” United States v. Ramirez, 473 F.3d 1026, 1037 (9th Cir. 2007) (citation omitted)(holding that officer had probable cause for arrest based on information concerning alleged drug activity shared by officers collectively on narcotics task force).
Courts have uniformly extended the “fellow officer” rule to the immigration context. For example, in Liu v. Phillips, the First Circuit upheld qualified immunity for a local officer who arrested an alien at the direction of an INS officer for a suspected violation of the immigration laws. 234 F.3d 55, 57-58 (1st Cir. 2000) (Boudin, J.) (observing how “a police force could not function without reasonable reliance on the statements and efforts of others,” and finding nothing “untoward in [the local officer’s] behavior in assisting” the INS agent with the arrest). In Garcia v. Speldrich, the court similarly held that qualified immunity applied for two State conservation officers who detained several individuals based on information provided by ICE officers who had interrogated the individuals. No. 13–CV–3182, 2014 WL 3864493, at *8-9 (D. Minn. Aug. 6, 2014). And in Smith v. State, the Third District Court of Appeal of Florida upheld a stop by local
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police based on the reasonable suspicion provided by an immigration officer that the defendant was in the country illegally. 719 So. 2d 1018, 1022 (Fla. Dist. Ct. App. 1998); accord United States v. Mejia-Chicas, 287 Fed. App’x 830 (11th Cir. 2008) (unpublished) (upholding a traffic stop and detention by a State police officer based on a request and information from an ICE officer).
In this case, the “fellow officer” rule permits DHS’s probable cause to believe that Mr. Lunn was removable (and, in fact, had already been ordered removed) to be imputed to the Commonwealth’s officers. See Xirum, 993 N.Y.S.2d at 631, (“Similar to the fellow officer rule that permits detention by one police officer acting on probable cause provided by another, the [State] had the right to rely upon [a detainer issued by] the very Federal law enforcement agency charged under the law with ‘the identification, apprehension, and removal of illegal aliens from the United States.’” (quoting Arizona, 132 S. Ct. at 2500)). Based on the fact that ICE had communicated its determination that probable cause existed to believe Mr. Lunn was removable (as evidenced by his past order of removal in Exhibit B), the Commonwealth was legally permitted to assist DHS in both his detention and transfer, and had more than sufficient probable cause to
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detain him until ICE could arrive to take him into federal custody.
II. THE TEMPORARY DETENTION OF AN ALIEN SUBJECT TO A FINAL ORDER OF REMOVAL, PURSUANT TO AN IMMIGRATION DETAINER, DOES NOT VIOLATE THE FOURTH AMENDMENT
Petitioner-Appellant and amici contend that immigration detainers violate the Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. Specifically, they note how detainers are not warrants, nor a court order, and do not themselves confer probable cause to detain an alien who would otherwise not be subject to jail or imprisonment. See, e.g., Br. of Pet.-App. at 37. But these arguments improperly attempt to impose criminal procedural requirements onto the civil administrative processes of deporting removable aliens, and in any event do not cast doubt on the detention at issue here.
A. There Is No Fourth Amendment Requirement That An Immigration Detainer Be Issued By A Neutral Magistrate.
The Fourth Amendment has long permitted civil immigration arrests and detentions notwithstanding the fact that the probable-cause determinations for such violations are made by administrative officers rather than a neutral magistrate. In the criminal context, the Fourth Amendment
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requires a neutral and detached magistrate to determine whether probable cause exists for an arrest. This must occur either before the arrest (via a warrant), or promptly after a warrantless arrest, which generally means 48 hours. See Gerstein v. Pugh, 420 U.S. 103, 125 (1975). But the analysis has always been different in the civil immigration context.
Consequently, a neutral magistrate does not make any probable-cause determination for immigration warrants, which are issued by DHS officers--not an immigration judge. 8 U.S.C. § 1226(a); see also 8 C.F.R. § 287.5(e)(2) (listing officers authorized to issue a warrant). The only situation when a neutral magistrate might have been involved is where, as here, an alien was arrested pursuant to a final order of removal. At that point, an immigration judge has previously found not merely that probable cause exists to believe the alien is removable, but has definitively ordered that he be removed from the United States. See, e.g., 8 U.S.C. § 1229a; Exhibit B.
Like the immigration detainers at issue in this case, statutes providing for removal from the United States have historically authorized the arrest of removable aliens based upon the determination of an authorized executive official. See, e.g., Act of June 25, 1798, ch. 58, § 2, 1 Stat. 571
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(signed by President Adams); Act of Oct. 19, 1888, ch. 1210, 25 Stat. 566; Act of Mar. 3, 1903, ch. 1012, § 21, 32 Stat. 1218; Act of Feb. 20, 1907, c. 1134, § 20, 34 Stat. 904; Act of Feb. 5, 1917, ch. 29, § 19, 39 Stat. 889; Act of Oct. 16, 1918, ch. 186, § 2, 40 Stat. 1012; Act of May 10, 1920, ch. 174, 41 Stat. 593; Internal Security Act of 1950, ch. 1024, Title I, § 22, 64 Stat. 1008. As the Supreme Court has put it, there is “overwhelming historical legislative recognition of the propriety of administrative arrest[s] for deportable aliens[.]” Abel v. United States, 362 U.S. 217, 233 (1960); see also Reno v. Flores, 507 U.S. 292, 309-10 (1993) (rejecting automatic review by an immigration judge of INS initial deportability and custody determinations for juvenile aliens and reversing en banc decision applying Gerstein to immigration proceedings).
In Abel, the Court addressed an analogous argument by the Defendant--a Soviet spy who was interrogated by the FBI in his Manhattan hotel room based on an administrative immigration arrest warrant. Id. at 230-34. The Defendant argued that his arrest, incidental search, and weeks-long immigration detention in Texas was invalid because it was never sanctioned by a neutral magistrate. After two rounds of oral argument and briefing on the issue, Justice
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Frankfurter’s opinion for the Court devoted five pages (of obiter dicta) to rejecting this claim. See also State v. Rodriguez, 317 Or. 27, 42-43 (1993) (administrative immigration arrest warrant was not “unreasonable” under Fourth Amendment); Jean v. Nelson, 727 F.2d 957, 974 n.24 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985) (“[A]liens may be arrested without a warrant for deportation ... since deportation is not considered ‘punishment[.]’”); Babula v. INS, 665 F.2d 293, 298 (3d Cir. 1981); Spinella v. Esperdy, 188 F. Supp. 535, 540-41 (S.D.N.Y. 1960) (noting “the unsoundness of th[is] constitutional attack”).
Regarding due process arguments, once an alien is in Federal custody and placed into immigration removal proceedings before an immigration judge, there are built-in safeguards permitting the alien to test the legality of his detention. For example, an alien can request a bond redetermination hearing, see 8 C.F.R. § 1003.19, and has an “immediate[]” opportunity to challenge his mandatory preremoval-order detention as a criminal alien at a “Joseph” hearing. Demore v. Kim, 538 U.S. 510, 514 (2003) (citing 8 C.F.R. § 3.19(h)(2)(ii) and In re Joseph, 22 I. & N. Dec. 799 (BIA 1999)). And if the Federal Government fails to timely remove aliens who have received a final order of removal,
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they may obtain release through petitioning for a writ of habeas corpus if there is no “significant likelihood” that they will be removed “in the reasonably foreseeable future.” Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
B. Fourth Amendment Criminal Procedural Requirements Have Never Been Imposed On The Civil Immigration System--And For Good Reason.
Even the Gerstein decision (which Petitioner-Appellant and amici repeatedly cite for support) is clear that its requirement for a neutral and detached magistrate is specific to criminal proceedings. 420 U.S. at 125 n.27. As the Court put it, “[t]he Fourth Amendment was tailored explicitly for the criminal justice system.... Moreover, the Fourth Amendment probable cause determination is in fact only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct.... [C]ivil procedures ... are inapposite and irrelevant in the wholly different context of the criminal justice system.” Id. (emphases added). This is an important point because it goes back to the fundamental distinction between criminal and immigration procedures: the latter has always been understood as a creature of civil law. See, e.g., Rhoden v. United States, 55 F.3d 428, 432 n.7 (9th Cir. 1995) (per curiam) (distinguishing the Fourth Amendment analysis
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for detention “[i]n the context of a criminal arrest” from the analysis involved for civil immigration detentions (citing Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-58 (1991))).
This explains why under the INA, warrants may be issued by DHS’s own officials, 8 U.S.C. § 1226(a), and warrantless arrests are authorized to be made by DHS officials, id. at § 1357. See also United States v. Garcia-Martinez, 228 F.3d 956, 961 (9th Cir. 2000) (rejecting argument that INS enforcement employees are inherently biased adjudicators). In short, courts have “frequently ... upheld administrative deportation proceedings shown ... to have been begun by arrests pursuant to” such processes. Abel, 362 U.S. at 23334. This “impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation” confirms that the Fourth Amendment has never been understood to require what Mr. Lunn now insists must be the case. Id. at 234; see also id. at 230 (“Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical
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legitimacy, to bring into question for the first time such a long-sanctioned practice of government[.]”); cf. United States v. Tejada, 255 F.3d 1, 3-4 (1st Cir. 2001) (holding that alien arrested and detained pursuant to 8 U.S.C. §1357(a)(2) is subject to civil detention, which “does not trigger the protections of [Federal Rule of Criminal Procedure ]5(a),” and, accordingly, “[t]he requirement that a magistrate evaluate his detention within 48 hours of his arrest is therefore inapplicable”).
An effective immigration enforcement system would be egregiously undermined if the probable cause determination needed to be made by a neutral magistrate, rather than an immigration officer. Hundreds of thousands of immigration arrests are made each year.17 Moreover, requiring such review for these apprehensions would distract magistrates from their primary duties of adjudicating cases. And the benefit of such review would be limited because the probable-cause determination is relatively straightforward in immigration
17 See, e.g., “FY 2016 ICE Immigration Removals,” U.S. Immigration and Customs Enforcement, https://www.ice.gov/ removal-statistics/2016#wcm-survey-target-id (last visited Mar. 27, 2017) (noting that DHS apprehended 415,816 aliens in fiscal year 2016); “Infographics 2015,” U.S. Dep’t of Homeland Sec., https://www.dhs.gov/immigration-statistics/ visualization/2015 (last visited Mar. 27, 2017) (showing 462,388 apprehensions in fiscal year 2015).
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cases: If an alien is present in the United States, DHS can often readily determine whether he was admitted or paroled. If not, that fact will alone demonstrate probable cause. If so, DHS can often swiftly determine whether the alien has overstayed or otherwise violated the terms and conditions of his authorized period of admission or parole. Requiring review by a neutral magistrate for all cases would impose a tremendous cost on the effective administration of the immigration laws, with little benefit in terms of substantive protections for individual aliens.
These same considerations are at play when other forms of legal process authorize temporary detentions, including detainers or holds issued by non-judicial entities. See Chavez v. City of Petaluma, No. 14-CV-5038, 2015 WL 6152479, at *6, *11 (N.D. Cal. Oct. 20, 2015) (dismissing a claim for allegedly improper detention where the plaintiff failed to allege that the parole hold/detainer lodged against her in county jail (by a “parole agent”) was not facially valid, and explaining that the plaintiff has “not asserted any allegations to show [the sheriff] was not acting pursuant to a facially valid detainer”); Puccini v. United States, No. 96-2402, 1996 WL 556987, at *1 (N.D. Ill. Sept. 26, 1996) (dismissing claims against defendants who held the plaintiff
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Case 3:17-cv-00485-WHO Document 61-6 Filed 03/29/17 Page 58 of 62
in State custody while subject to a Federal criminal detainer, and explaining that the defendants were “entitled to rely upon a duly issued and outstanding federal detainer”); Gardner v. Cal. Highway Patrol, No. 2:14-CV-2730, 2015 WL 4456191, at *16 (E.D. Cal. July 20, 2015) (explaining that a county could reasonably rely on a facially valid probable-cause declaration from a highway patrol officer to detain the plaintiff in jail). There simply is no principled distinction warranting respecting detainers in other circumstances issued by non-judicial entities, but not here, particularly in these circumstances where Federal immigration interests are paramount and a final order of removal is outstanding.
III. THIS CASE IS A POOR VEHICLE FOR ADDRESSING THE CONSTITUTIONALITY OF IMMIGRATION DETAINERS WRIT LARGE
The parties ask the Court to issue a sweeping decision addressing the constitutionality of the federal immigration detainer scheme as a facial matter. The Federal Government, however, urges a more modest course. This case involves only one alien, presently subject to detention pending the execution of his nearly ten-year-old final order of removal. His arrest was thus plainly lawful under Federal law, his detainer only extended his state criminal detention by “hours,” and he is subject to mandatory detention under
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Federal law during a removal period of presumptively 90 days. 8 U.S.C. § 1231(a)(1)(A). The traditional rule in both Federal and Commonwealth courts is to decide particular concrete questions--not abstract questions concerning third parties. See Los Angeles Police Dep’t v. United Reported Publ’g Corp., 528 U.S. 32, 38-39 (1999); Commonwealth v. Pon, 469 Mass. 296, 299-300 n.7 (2015) (courts “typically decline to decide constitutional questions unnecessarily” and observing a “practice of judicial restraint in the realm of constitutional matters”). This rule of judicial prudence is especially apt here.
First, this case involves an alien who is subject to a final order of removal. He is thus not similarly situated to an alien who is subject to an immigration detainer on other grounds. And even though “[t]here is no categorical bar to mounting a facial challenge under the Fourth Amendment, ... Plaintiffs assume a demanding burden,” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016). They must “establish that [the] ‘law is unconstitutional in all of its applications,’” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2013) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). Other courts facing such sweeping arguments have declined “challenge[s] to
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[search or seizure] techniques not employed in a particular case.” United States v. Mohamud, 843 F.3d 420, n.21 (9th Cir. 2016). The Court should accordingly limit its consideration to Mr. Lunn’s circumstances. See United States v. Salerno, 481 U.S. 739, 745 (1987).
Second, recent changes to Federal detainer policy applying prospectively distinguish Mr. Lunn’s case, and any others similarly situated, from any such case that may arise in the future. For example, ICE’s new detainer policy, set to go into effect on April 2, 2017, requires all immigration detainer forms to be accompanied by either a warrant for the arrest of the alien (signed by an authorized immigration officer) or a copy of a warrant of removal/deportation (also signed by an authorized immigration officer).18 Given these changes and the specific factual circumstances of Mr. Lunn’s case, this is simply not a case “where the issue [is] one of public importance, where it was fully argued on both sides, where the question [is] certain, or at least very likely, to arise again in similar factual circumstances[.]” Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984) (emphasis added).
18 Under ICE’s new “Form I-247A,” immigration officers must continue to establish probable cause to believe that the subject is an alien who is removable from the United States before issuing a detainer with a Federal, State, local, or tribal law enforcement agency.
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Accordingly, to the extent the Court is inclined to issue a precedential decision, the United States submits that the Court should limit its decision to the facts before it on appeal, and decline the named parties’ and amici’s invitation to issue a broad, facial invalidation of a detainer system that no longer exists. Under such circumstances, the decision below should not be disturbed and this Court should leave further changes to Congress, DHS, and the General Court of Massachusetts in the first instance.
CONCLUSION For these reasons, the United States respectfully asks that this Court consider this amicus brief and: (1) hold that State and local law enforcement in the Commonwealth may temporarily detain an alien subject to a final order of removal in response to a Federal immigration detainer indicating that the alien is subject to such an order, (2) hold that the brief detention of such an alien does not violate any Federal constitutional right he may have, and (3) limit the scope of its holding to the factual circumstances of this case (or to those similarly situated), reserving the abstract, facial issues raised by the parties for resolution in a case actually raising those issues in the context of the currently operative Federal immigration detainer policy.
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Dated: March 27, 2017

Respectfully Submitted,
CHAD A. READLER Acting Asst. Attorney Gen.
WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section
/s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel
/s/ Joshua S. Press JOSHUA S. PRESS JOSEPH P. DARROW Trial Attorneys U.S. Dept. of Justice Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-0106
Counsel for Amicus Curiae

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EXHIBIT G

Did Culberson misfire when he took a shot at 'sanctuary city' funds? - Houston Chronicle Case 3:17-cv-00485-WHO Document 61-7 Filed 03/29/17 Page 2 of 11

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HOUSTON

Did Culberson misfire when he took a shot at 'sanctuary city' funds?
Culberson says funds cut; briefs show otherwise
By Kevin Diaz | March 18, 2017 | Updated: March 19, 2017 9:02am
16

Photo: Jon Shapley Jon Shapley, Staff
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U.S. Rep. John Culberson, shown at a Houston Housing Authority earlier this month, says of the jurisdictions around the nation that are contesting President Donald Trump's threat to yank federal funds: "Who cares? They're going to lose. … No judge can compel me to release the money."

WASHINGTON - Last July, a year after the shooting death of California resident Kate Steinle intensified the national debate over illegal immigration, Houston Republican John Culberson declared a single-handed victory against sanctuary cities like San Francisco.

Employing a stealth budget maneuver as chairman of a House panel that controls Justice Department spending, Culberson announced that jurisdictions like San Francisco - nay the entire state of California - would be denied millions of dollars in law enforcement grants unless they complied with federal law on sanctuary cities.

"Today this law is being fully enforced for the first time," Culberson said at the time. "State and local governments must now choose between receiving federal law enforcement grant money or protecting dangerous criminal aliens. They can no longer do both."

Except that state and federal records tell a much different story.

Officials in California, Connecticut and other jurisdictions in Culberson's crosshairs say nothing has changed. Though Culberson claims to be "judge and jury" in the matter, government briefs filed in recent lawsuits challenging President Donald Trump's threatened funding cuts for sanctuary cities also show that officials have yet to take action - and likely face lengthy litigation if they do.

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Did Culberson misfire when he took a shot at 'sanctuary city' funds? - Houston Chronicle

Page 3 of 10

Case 3:17-cv-00485-WHO Document 61-7
The 10 cities and states targeted by

Filed 03/29/17

PageAr4e oTrfu1m1p's immigration
orders signaling the

Culberson - including New York City,

demise of due

Chicago and the state of Connecticut -

continued to get law enforcement grants worth a total of $96 million in late 2016, even though Culberson says

Houston leaders try to ease worries of anxious immigrant

the Justice Department had "certified"

them as sanctuary city violators last July.

Deported immigrant trying to adjust to life alone in the foreign

No Texas cities are on the list, although Culberson has said that Travis County is a sanctuary.

Jackson Lee demands Trump reopen local deportation case

Officials from two of the largest jurisdictions that were implicated California and Connecticut - say they wholly comply with all federal laws and fully expect to receive their 2017 allocations.
"San Francisco is eligible to receive federal grants, and we will continue to apply for them," said San Francisco City Attorney Dennis Herrera.

Texas builders fear fallout of immigration crackdown on workforce
New guidelines have immigrants scrambling for answers on legal
Sheriff cuts ties with ICE program over immigrant detention

Connecticut officials say the Justice Department asked them to outline their policies, but they received no indication they are cut off or ineligible for grants.
"Nobody's had any grants withheld," said Mike Lawlor, the state's undersecretary for criminal justice policy and planning.

Immigrants here illegally shadowed by fear of deportation
The Million: Immigrants from around the world are transforming

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Did Culberson misfire when he took a shot at 'sanctuary city' funds? - Houston Chronicle

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Case 3:17-cv-00485-WHO Document 61-7 Filed 03/29/17 Page 5 of 11
Culberson insists they're wrong and that starting this year, they're "in for a

very unpleasant surprise."

"I've already had them certified as violators," Culberson said in an interview last week in which he claimed a "quasi-judicial role as chairman of a subcommittee … using the power of the purse to enforce the law."

Culberson, in his ninth term in Congress, says he has opened a new front in the GOP battle against jurisdictions that don't fully cooperate with federal Immigration and Customs Enforcement agents, a gambit that he says is now being copied on a wider scale by Trump, who also has threatened to block funding to localities with so-called sanctuary city policies.

TRANSLATOR
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Select Language ▼

"What I've done here is totally novel," Culberson said. "I'm blazing a new trail."

Over the past five years, local and state governments across the nation have received over $3.4 billion in federal law enforcement grants. California got more than $68 million last year. Connecticut got some $2.7 million.

Officials in the targeted states, however, say they foresee no cutoff in government aid from Culberson's move. They note that Trump's January order mandating a review of funding for sanctuary cities specifically exempts grants "deemed necessary for law enforcement purposes."

Privately, some of Culberson's critics see him working to protect his right flank against potential primary rivals looking for a quick victory in a messy standoff over immigration. Various efforts to crack down on deportees and sanctuary cities have been stymied in Congress, including "Kate's Law," which was named after Kate Steinle.

"I've been working on this for years," Culberson said. "But Kate Steinle's murder just pushed me over the edge."

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Did Culberson misfire when he took a shot at 'sanctuary city' funds? - Houston Chronicle Case 3:17-cv-00485-WHO Document 61-7 Filed 03/29/17 Page 6 of 11
MENU

Page 5 of 10


Trump moves forward on immigration
President Donald Trump has taken the first steps toward curbing immigration and beefing up border security by building a wall along the U.S.-Mexico border. Things to know about U.S. immigration:

Some border barriers exist
Where fencing, vehicle barriers and other impediments to travel are already located along the roughly 2,000-mile Southwestern border:

Source: Department of Homeland Security

While Republicans have focused on the threat to public safety posed by criminals coming over the border illegally, Democrats see it as counterproductive to turn local police into immigration agents. Immigrants who witness or suffer crimes, they argue, are less likely to call the cops if it might lead to a visit from ICE.
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But for Culberson, as for most Texas Republicans, his most pressing political

threat does not come from the left. One of his GOP primary opponents last year

was Maria Espinoza, co-founder of The Remembrance Project, a nonprofit group

that advocates for the families of people killed by immigrants living in the U.S.

illegally.

She was on hand in Washington when Trump signed his executive order on immigration. She also has been critical of Culberson, accusing him of supporting former President Barack Obama's "executive amnesty" by voting for a 2016 government spending bill that did not cut off funds to sanctuary cities.

'Like the CFO' of Justice'

Culberson's maneuver was rolled out in July with little fanfare, receiving scant attention outside of the conservative press, including Breitbart.com, the altright platform of Trump strategist Steve Bannon.

But Culberson recently has started to remind voters that the blueprint for action is his.

"I personally made sure that money is cut off to these sanctuary cities," he told constituents in a March 1 tele-town hall. "I didn't get a lot of publicity about it, because I was concerned that once President Obama heard about it or (U.S. Rep. Nancy) Pelosi of the Democrats, that they'd go down to the floor and start waving their arms and raising Cain."

"I'm like the CFO of the Department of Justice," he continued. "I was able to cut off money to sanctuary cities beginning last summer. So it's done, and now the Trump administration has expanded that policy nationwide."

The disconnect stems in part from different readings of a 1996 law intended to ensure local cooperation with federal immigration agents.

To Culberson, the law bars state and local officials from interfering "in any way" with requests for personal immigration information by federal authorities.

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Lawyers for California and Connecticut read the law more narrowly. They say it

bars local officials only from restricting "information concerning an individual's

citizenship or immigration status."

That's different from enforcing ICE requests to hold immigrants who are subject to deportation, or to notify federal agents about prisoners' release dates something most sanctuary cities won't do without criminal warrants.

That is the reason San Francisco jailers released Steinle's alleged killer, Juan Francisco Lopez-Sanchez, a felon on probation in Texas who had been deported to Mexico five times.

There is no legal definition of "sanctuary city." The Trump administration says it is still working on one as part of its executive order. But localities are typically deemed to be sanctuary jurisdictions when they decline to hold or share information about their prisoners for ICE

That's the standard the Texas Legislature is using this year as it debates legislation pushed by Gov. Greg Abbott to punish sanctuary cities.

Some state officials say that requiring local jailers to hold immigrants beyond their legal release dates not only violates Fourth Amendment search and seizure protections but also the 10th Amendment rights of states against being "commandeered" by federal authorities.

ICE 'should get warrant'

"Here's what's really going on," said Michael Wishnie, who teaches in Yale Law School's Worker and Immigrant Rights Advocacy Clinic. "ICE should stop cutting corners and trying to trick local jails and police into joining in illegal immigration round-ups. If ICE wants local police to arrest someone, the agency should get a judicial warrant, just like the FBI, DEA and any other professional law enforcement agency does."

Wishnie says sanctuary city detention policies don't violate the law. Culberson maintains that his interpretation of the Justice Department policy on sanctuary cities is beyond dispute.

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Did Culberson misfire when he took a shot at 'sanctuary city' funds? - Houston Chronicle

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"They're welcome to their opinion, but I'm in charge of the federal treasury," he

said. "It's my responsibility to be judge and jury of when and where federal

dollars are allocated."

It was in Culberson's role as chairman of the House Appropriations subcommittee on Commerce, Science and Justice that he was able to press then-Attorney General Loretta Lynch last year toassess whether all Justice Department grant recipients complied with the 1996 law - the same law Trump cited in his executive order.

In a behind-the-scenes exchange that Culberson likens to a "chess game," his cudgel was the Justice Department's annual funding requests, which go through his committee.

As part of the review, Justice Department Inspector General Michael Horowitz zeroed in on 10 major grant recipients, a group Culberson calls "the Top 10 jurisdictions on the Hit Parade."

The study, first made public in July, found that the 1996 law "does not specifically address restrictions by state and local entities on cooperation with ICE regarding detainers." Horowitz also noted that the Department of Homeland Security, which includes ICE, had determined that civil immigration detainers are "voluntary' - and therefore unenforceable.

Nevertheless, Horowitz concluded that most, if not all, of the 10 jurisdictions in question limited cooperation with ICE in some way. While not necessarily in violation of the 1996 law, Horowitz wrote, "we believe these policies and others like them may be causing local officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all respects. That, of course, would be inconsistent with and prohibited by" the 1996 law.

For Culberson, the key word was "inconsistent."

Despite the careful language in Horowitz's report, Culberson said the inspector general "made it official" that the 10 jurisdictions violated Justice Department sanctuary city policies, declaring them ineligible for further grants.

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"That's enough. Trust me," said Culberson, adding that he received a verbal

reassurance from Horowitz. "They were reluctant to use stronger language, so I

worked it out with the inspector general," he said.

A spokesman for Horowitz declined comment.

Culberson also relied on a July 7 Justice Department "guidance" clarifying that the 1996 law applies to law enforcement grants. But there was a catch: The memo did not say whether the law specifically required compliance with ICE detainer requests. To the contrary, it noted that the 1996 law imposed no "affirmative obligation" on states and localities to collect information about people's immigration status, nor to "take specific actions upon obtaining such information."

The same day, Culberson was notified about the guidance in a letter from thenAssistant Attorney General Peter Kadzik. The letter noted, however, that the Office of Justice Programs "already" required prospective grant applicants to certify that they complied with "all applicable" federal laws, which means they were getting money even if they didn't honor ICE detainer requests.

To Culberson, it meant only this: "They weren't enforcing it. They are now."

But a flurry of lawsuits over Trump's immigration order suggests that the matter is far from settled.

No 'concrete' harm

California officials point to the Justice Department's response this month to a preemptive challenge by Santa Clara County, one of several jurisdictions around the nation - including San Francisco - that are contesting Trump's threat to yank their federal funds.

One of the Trump administration's arguments has been that Santa Clara's action is premature because it has not suffered any "concrete" harm, in part because there has been no finding as to who is a sanctuary city and who is not.

That interpretation was reinforced in a Justice Department letter to several members of Congress on March 7 stating that the administration is still "in the
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Case 3:17-cv-00485-WHO Document 61-7 Filed 03/29/17 Page 11 of 11
process of identifying … what actions, if any, can lawfully be taken in order to

encourage state and local jurisdictions to comply with federal law."

Culberson says he's untroubled by the lawsuits.

"Who cares?" he said. "They're going to lose. I'm the one who's going to make the final decisions, along with the president. No judge can compel me to release the money."

"If you want federal money, follow federal law," he added. "Particularly if you're dealing with John Culberson and Donald Trump, who will not give you the money unless you follow federal law. You can take that to the bank."

Kevin Diaz
Houston Chronicle Washington Correspondent

© 2017 Hearst Newspapers, LLC.

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Case 3:17-cv-00485-WHO Document 61-8 Filed 03/29/17 Page 1 of 26
EXHIBIT H

Case 3:17-cv-00485-WHO Document 61-8 Filed 03/29/17 Page 2 of 26
ENFORCEMENT AND REMOVAL OPERATIONS
Weekly Declined Detainer Outcome Report For Recorded Declined Detainers Feb 4 – Feb 10, 2017
Summary
Pursuant to section 9(b) of Executive Order 13768, Enhancing Public Safety in the Interior of the United States, and section H of the Secretary of Homeland Security’s subsequent implementation memo, Enforcement of the Immigration Laws to Serve the National Interest, U.S. Immigration and Customs Enforcement (ICE) is making available for public release the non-Federal jurisdictions that release aliens from their custody, notwithstanding that such aliens are subject to a detainer or similar request for custody issued by ICE to that jurisdiction. For instances of such release, the report also includes the associated individual’s citizenship, detainer issued and declined dates, and notable criminal activity. ICE compiled this report based on jurisdictions with detainers that were recorded as declined between February 4, 2017 and February 10, 2017, regardless of detainer issuance date. It should be noted that law enforcement agencies (LEA) do not generally advise ICE of when a detainer is not honored, and therefore this report represents declined detainers that ICE personnel have become aware of during their enforcement activities. This report is comprised of four sections:
• Section I: Highest Volume of Detainers Issued between February 4, 2017 and February 10, 2017 to Jurisdictions which Restrict Cooperation with ICE
• Section II: Jurisdictions with Recorded Declined Detainers between February 4, 2017 and February 10, 2017 • Section III: Table of Jurisdictions that have Enacted Policies which Limit Cooperation with ICE • Section IV: Report Scope and Data Fidelity
1

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Section IV: Report Scope and Data Fidelity
Operational/Policy
1. Some field offices ceased issuing detainers to known uncooperative jurisdictions. ICE field offices have been recently instructed to issue detainers on all removable aliens in a LEA’s custody. As a result, the number of issued detainers is expected to increase over the next several reporting periods.
2. Currently, uncooperative jurisdictions prevent ICE from knowing when an alien has been released from custody. Consequently, active detainers exist for aliens who are no longer incarcerated. The field offices are in the process of reviewing outstanding active ICE detainers, potentially affecting the list of jurisdictions listed in future reporting periods.
3. ICE field offices are also being instructed to update the criminal history information contained within ICE’s records at the time of detainer issuance, as ICE does not normally enter criminality until it assumes custody post-processing. Hence, the list of crimes reported for aliens subject to detainers that are subsequently declined may be temporarily under-reported until this new change improves data quality.
4. At present, ICE does not document, in a systematically reportable manner, the immigration status of an alien at time of detainer issuance. ICE sends detainers to law enforcement agencies, which requests aliens be turned over to ICE prior to release, if ICE possesses probable cause to believe that the alien is removable from the United States.
Statistical Reporting
5. ICE will update this report weekly, noting the time period for which it collected data. Data reflected will be 6 weeks past to ensure data integrity.
6. ICE compiled this report based on jurisdictions with detainers that were declined between February 4, 2017 and February 10, 2017, regardless of detainer issuance date. As such, the declined detainers may include a combination of I-247, I-247D, I247N, and/or I-247X forms.
7. This report should not be considered an exclusive factor in determining a jurisdiction’s level of cooperation with and support of ICE or the law enforcement community.
24

Case 3:17-cv-00485-WHO Document 61-8 Filed 03/29/17 Page 26 of 26 8. The I-247N form and some I-247X forms requested that the LEA provide notice to ICE as early as possible, or as early as
practicable before the subject is released from LEA custody (at least 48 hours). This notification is intended to allow ICE time to respond and take custody of the alien where resources may not be instantly available. This report may reflect instances in which the LEA may have technically provided notification to ICE in advance of an alien’s release, but where the LEA did not provide sufficient advance notification for ICE to arrange the transfer of custody prior to release due to geographic limitations, response times, or other logistical reasons. In these instances ICE records the detainer as declined by the LEA. 9. This report does not, nor does it intend to create any rights, privileges, or benefits, substantive or procedural, enforceable by any party against the United States; its departments, agencies, or other entities; its officers or employees; contractors or any other person.
25

 
 Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 1 of 11

1 Elizabeth J. Cabraser (State Bar No. 83151) Kelly M. Dermody (State Bar No. 171716)
2 Dean M. Harvey (State Bar No. 250298) Katherine C. Lubin (State Bar No. 259826)
3 Yaman Salahi (State Bar No. 288752) Michelle A. Lamy (State Bar No. 308174)
4 Philip M. Hernandez (State Bar No. 311111) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 29th Floor San Francisco, CA 94111-3339
6 Telephone: 415.956.1000 Facsimile: 415.956.1008
7 Attorneys for Amici Curiae City of Menlo Park and City of New Orleans
8
9 Additional Counsel for Amici Curiae Listed Below and in Appendix

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 CITY AND COUNTY OF SAN
14 FRANCISCO,

Case No. 3:17-cv-00485-WHO

15

Plaintiff,

ADMINISTRATIVE MOTION FOR

16 v.

LEAVE TO FILE AMICUS BRIEF OF 36 CITIES AND COUNTIES IN

17 DONALD J. TRUMP, President of the

SUPPORT OF CITY AND COUNTY OF

United States, JOHN F. KELLY, Secretary SAN FRANCISCO’S MOTION FOR

18 of the United States Department of Homeland Security, JEFFERSON B.

PRELIMINARY INJUNCTION

19 SESSIONS, Attorney General of the United States, DOES 1-100,
20 Defendant.
21

Date: Time: Dept.: Judge:

April 14, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

22

23

24

25

26

27

28

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1

Pursuant to this Court’s March 21, 2017 Order Regarding Amicus Briefing, Amici hereby

2 request leave to file the attached Amicus Brief of 36 Cities and Counties in Support of City and

3 County of San Francisco’s Motion for Preliminary Injunction.

4

Amici represent 36 cities and counties from across the country. Each possesses an interest

5 in San Francisco’s Motion for Preliminary Injunction, as set forth below, and all believe they can

6 assist the Court in resolving the issues raised by the motion. Amici’s proposed brief elaborates on

7 the many reasons Section 9 of Executive Order 13768 violates the Constitution, and Amici are

8 uniquely positioned to demonstrate that adequate relief cannot be provided to any individual city

9 or county without a nationwide injunction. Amici include:

10

County of Alameda is in California. County of Alameda has 1,510,271 residents,

11 according to the 2010 United States Census. Every year, County of Alameda receives federal

12 funding directly, and also indirectly, through California.

13

Cook County is in Illinois. Cook County has 5,194,675 residents, according to the 2010

14 United States Census. Every year, Cook County receives federal funding directly, and also

15 indirectly, through Illinois.

16

King County is in Washington. King County has 1,931,249 residents, according to the

17 2010 United States Census. Every year, King County receives federal funding directly, and also

18 indirectly, through Washington.

19

County of Los Angeles is in California. County of Los Angeles has 9,818,605 residents,

20 according to the 2010 United States Census. Every year, County of Los Angeles receives federal

21 funding directly, and also indirectly, through California.

22

County of Marin is in California. County of Marin has 252,409 residents, according to

23 the 2010 United States Census. Every year, County of Marin receives federal funding directly,

24 and also indirectly, through California.

25

County of Monterey is in California. County of Monterey has 415,057 residents,

26 according to the 2010 United States Census. Every year, County of Monterey receives federal

27 funding directly, and also indirectly, through California.

28

County of Santa Cruz is in California. County of Santa Cruz has 262,382 residents,

1344142.1

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Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 3 of 11

1 according to the 2010 United States Census. Every year, County of Santa Cruz receives federal

2 funding directly, and also indirectly, through California.

3

County of Sonoma is in California. County of Sonoma has 483,878 residents, according

4 to the 2010 United States Census. Every year, County of Sonoma receives federal funding

5 directly, and also indirectly, through California.

6

Travis County is in Texas. Travis County has 1,024,266 residents, according to the 2010

7 United States Census. Every year, Travis County receives federal funding directly, and also

8 indirectly, through Texas.

9

Albany is a city within Albany County, in New York. Albany has 97,856 residents,

10 according to the 2010 United States Census. Every year, Albany receives federal funding

11 directly, and also indirectly, through Albany County and New York.

12

Austin is a city within Travis County, in Texas. Austin has 790,390 residents, according

13 to the 2010 United States Census. Every year, Austin receives federal funding directly, and also

14 indirectly, through Travis County and Texas.

15

Berkeley is a city within County of Alameda, in California. Berkeley has 112,580

16 residents, according to the 2010 United States Census. Every year, Berkeley receives federal

17 funding directly, and also indirectly, through County of Alameda and California.

18

Cathedral City is a city within Riverside County, in California. Cathedral City has

19 51,200 residents, according to the 2010 United States Census. Every year, Cathedral City

20 receives federal funding directly, and also indirectly, through Riverside County and California.

21

Chicago is a city within Cook County, in Illinois. Chicago has 2,695,598 residents,

22 according to the 2010 United States Census. Every year, Chicago receives federal funding

23 directly, and also indirectly, through Cook County and Illinois.

24

Denver is a city and county in Colorado. Denver has 600,158 residents, according to the

25 2010 United States Census. Every year, Denver receives federal funding directly, and also

26 indirectly, through Colorado.

27

East Palo Alto is a city within San Mateo County, in California. East Palo Alto has

28 28,155 residents, according to the 2010 United States Census. Every year, East Palo Alto

1344142.1

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Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 4 of 11

1 receives federal funding directly, and also indirectly, through San Mateo County and California.

2

Jersey City is a city within Hudson County, in New Jersey. Jersey City has 247,597

3 residents, according to the 2010 United States Census. Every year, Jersey City receives federal

4 funding directly, and also indirectly, through Hudson County and New Jersey.

5

Los Angeles is a city within County of Los Angeles, in California. Los Angeles has

6 3,792,621 residents, according to the 2010 United States Census. Every year, Los Angeles

7 receives federal funding directly, and also indirectly, through County of Los Angeles and

8 California.

9

Menlo Park is a city within San Mateo County, in California. Menlo Park has 32,026

10 residents, according to the 2010 United States Census. Every year, Menlo Park receives federal

11 funding directly, and also indirectly, through San Mateo County and California.

12

Minneapolis is a city within Hennepin County, in Minnesota. Minneapolis has 382,578

13 residents, according to the 2010 United States Census. Every year, Minneapolis receives federal

14 funding directly, and also indirectly, through Hennepin County and Minnesota.

15

New Orleans is a city within Louisiana. New Orleans has 343,829 residents, according to

16 the 2010 United States Census. Every year, New Orleans receives federal funding directly, and

17 also indirectly, through Louisiana.

18

Oakland is a city within County of Alameda, in California. Oakland has 390,724

19 residents, according to the 2010 United States Census. Every year, Oakland receives federal

20 funding directly, and also indirectly, through County of Alameda and California.

21

Portland is a city within Multnomah County, in Oregon. Portland has 583,776 residents,

22 according to the 2010 United States Census. Every year, Portland receives federal funding

23 directly, and also indirectly, through Multnomah County and Oregon.

24

Princeton is a city within Mercer County, in New Jersey. Princeton has 28,572 residents,

25 according to the 2010 United States Census. Every year, Princeton receives federal funding

26 directly, and also indirectly, through Mercer County and New Jersey.

27

Sacramento is a city within Sacramento County, in California. Sacramento has 466,488

28 residents, according to the 2010 United States Census. Every year, Sacramento receives federal

1344142.1

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Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 5 of 11

1 funding directly, and also indirectly, through Sacramento County and California.

2

Saint Paul is a city within Ramsey County, in Minnesota. Saint Paul has 285,068

3 residents, according to the 2010 United States Census. Every year, Saint Paul receives federal

4 funding directly, and also indirectly, through Ramsey County and Minnesota.

5

Salinas is a city within County of Monterey, in California. Salinas has 150,441 residents,

6 according to the 2010 United States Census. Every year, Salinas receives federal funding

7 directly, and also indirectly, through County of Monterey and California.

8

Salt Lake City is a city within Salt Lake County, in Utah. Salt Lake City has 186,440

9 residents, according to the 2010 United States Census. Every year, Salt Lake City receives

10 federal funding directly, and also indirectly, through Salt Lake County and Utah.

11

Santa Ana is a city within Orange County, in California. Santa Ana has 324,528

12 residents, according to the 2010 United States Census. Every year, Santa Ana receives federal

13 funding directly, and also indirectly, through Orange County and California.

14

Santa Clara is a city within Santa Clara County, in California. Santa Clara has 116,448

15 residents, according to the 2010 United States Census. Every year, Santa Clara receives federal

16 funding directly, and also indirectly, through Santa Clara County and California.

17

Santa Fe is a city within Santa Fe County, in New Mexico. Santa Fe has 67,947

18 residents, according to the 2010 United States Census. Every year, Santa Fe receives federal

19 funding directly, and also indirectly, through New Mexico.

20

Santa Monica is a city within County of Los Angeles, in California. Santa Monica has

21 89,736 residents, according to the 2010 United States Census. Every year, Santa Monica receives

22 federal funding directly, and also indirectly, through County of Los Angeles and California.

23

Seattle is a city within King County, in Washington. Seattle has 608,660 residents,

24 according to the 2010 United States Census. Every year, Seattle receives federal funding directly,

25 and also indirectly, through King County and Washington.

26

Somerville is a city within Middlesex County, in Massachusetts. Somerville has 75,754

27 residents, according to the 2010 United States Census. Every year, Somerville receives federal

28 funding directly, and also indirectly, through Middlesex County and Massachusetts.

1344142.1

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Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 6 of 11

1

Syracuse is a city within Onondaga County, in New York. Syracuse has 145,170

2 residents, according to the 2010 United States Census. Every year, Syracuse receives federal

3 funding directly, and also indirectly, through Onondaga County and New York.

4

West Hollywood is a city within County of Los Angeles, in California. West Hollywood

5 has 34,399 residents, according to the 2010 United States Census. Every year, West Hollywood

6 receives federal funding directly, and also indirectly, through County of Los Angeles and

7 California.

8

For the foregoing reasons, Amici respectfully request the Court’s permission to file the

9 attached Amicus Brief, a copy of which accompanies this Administrative Motion.

10 Dated: March 29, 2017 11

Respectfully submitted,

12

By: /s/ Kelly M. Dermody

13

Elizabeth J. Cabraser

Kelly M. Dermody

14

Dean M. Harvey

Katherine C. Lubin

15

Yaman Salahi

Michelle A. Lamy

16

Philip M. Hernandez

LIEFF CABRASER HEIMANN &

17

BERNSTEIN, LLP

275 Battery Street, 29th Floor

18

San Francisco, CA 94117-3339

Telephone: (415) 956-1000

19

Facsimile: (415) 956-1008

20

Attorneys for Amici Curiae City of Menlo Park and

City of New Orleans 21

22

Kirsten Keith

Mayor, City of Menlo Park

23

701 Laurel Street

Menlo Park, CA 94025

24

Telephone: 650.308.4618

25

Mayor of Amicus Curiae City of Menlo Park

26

27

28

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Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 7 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1344142.1

Rebecca H. Dietz City Attorney, City of New Orleans 1300 Perdido Street, Suite 5E03 New Orleans, LA 70112 Telephone: 504.658.9800
Attorney for Amicus Curiae City of New Orleans
Additional Counsel for Amici Curiae Listed in Appendix

ADMINISTRATIVE MOTION FOR LEAVE TO FILE

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AMICUS BRIEF OF 36 CITIES AND COUNTIES

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Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 8 of 11

1

APPENDIX

2

Additional Counsel for Amici Curiae

3

4

DONNA R. ZIEGLER

5

County Counsel, County of Alameda 1221 Oak Street, Suite 450

6

Oakland, CA 94612 Attorney for County of Alameda

7

8

KIMBERLY M. FOXX States Attorney for Cook County

9

69 W. Washington, 32nd Floor Chicago, IL 60602

10

Attorney for Cook County

CHARLES J. MCKEE County Counsel, County of Monterey 168 West Alisal Street Salinas, CA 93901 Attorney for County of Monterey
DANA MCRAE County Counsel 701 Ocean Street, Room 505 Santa Cruz, CA 95060 Attorney for County of Santa Cruz

11

H. Kevin Wright

12

Chief Civil Deputy For DAN SATTERBERG

13

King County Prosecuting Attorney 516 Third Avenue, W400

14

Seattle, WA 98104 Attorney for King County

15

16

MARGARET L. CARTER APALLA U. CHOPRA

17

JAMES W. CROOKS O’Melveny & Myers LLP

18

400 S. Hope Street, 18th Floor Los Angeles, CA 90071

19

Attorney for County of Los Angeles

20

21

BRIAN E. WASHINGTON County Counsel

22

3501 Civic Center Drive, Room 275 San Rafael, CA 94903

23

Attorney for County of Marin

SHIRLEE ZANE Chair, Board of Supervisors County of Sonoma 575 Administration Drive, Room 100A Santa Rosa, CA 95403 For County of Sonoma
DAVID A. ESCAMILLA Travis County Attorney SHERINE E. THOMAS Assistant County Attorney Travis County Attorney’s Office P.O. Box 1748 Austin, Texas 78767 Attorneys for Travis County

24

25

26

27

28

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1

WILLIAM G. KELLY, JR.

Interim Corporation Counsel

2

Department of Law

City Hall

3

Albany, NY 12207

Attorney for City of Albany

4

5

ANNE L. MORGAN

City Attorney

6

City of Austin Law Department

P.O. Box 1088

7

Austin, TX 78767

Attorney for City of Austin

8

9

ZACH COWAN

City Attorney, City of Berkeley

10

2180 Milvia Street, Fourth Floor

Berkeley, CA 94704

11

Attorney for City of Berkeley

12

STANLEY E. HENRY

13

Mayor, City of Cathedral City

68700 Avenida Lalo Guerrero

14

Cathedral City, CA 92234

For City of Cathedral City

15

16

EDWARD N. SISKEL

17

Corporation Counsel

30 N. LaSalle Street, Suite 800

18

Chicago, IL 60602

Attorney for City of Chicago

19

20

KRISTIN M. BRONSON

City Attorney, City and County of Denver

21

1437 Bannock Street, Room 353

Denver, CO 80202

22

Attorney for City and County of Denver

23

RAFAEL E. ALVARADO JR.

24

City Attorney, City of East Palo Alto

2415 University Avenue, 2nd Floor

25

East Palo Alto, CA 94303

Attorney for City of East Palo Alto

26

27

28

1344142.1

-8-

JAMES SANCHEZ City Attorney Sacramento City Attorney’s Office 915 I Street, Fourth Floor Sacramento, CA 95814 Attorney for City of Sacramento
SAMUEL J. CLARK City Attorney, City of Saint Paul 400 City Hall 15 Kellogg Blvd W Saint Paul, MN 55102 Attorney for City of Saint Paul
CHRISTOPHER A. CALLIHAN City Attorney, City of Salinas 200 Lincoln Avenue Salinas, CA 93901 Attorney for City of Salinas
MARGARET D. PLANE City Attorney, Salt Lake City Corp. 451 S. State Street, Suite 505A P.O. Box 145478 Salt Lake City, UT 84114 Attorney for Salt Lake City
SONIA R. CARVALHO City Attorney, City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Attorney for City of Santa Ana
BRIAN DOYLE Interim City Attorney 1500 Warburton Avenue Santa Clara, CA 95050 Attorney for City of Santa Clara
KELLEY BRENNAN City Attorney, City of Santa Fe P.O. Box 909 Santa Fe, NM 87501 For City of Santa Fe
ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS BRIEF OF 36 CITIES AND COUNTIES Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 62 Filed 03/29/17 Page 10 of 11

1

JEREMY FARRELL

Corporation Counsel

2

Jersey City Law Department

City Hall – 280 Grove Street

3

Jersey City, NJ 07302

Attorney for Jersey City

4

JOSEPH LAWRENCE Interim City Attorney, City of Santa Monica 1685 Main Street, Suite 310 Santa Monica, CA 90401 Attorney for City of Santa Monica

5

MICHAEL N. FEUER

City Attorney, City of Los Angeles

6

200 N. Main Street, 800 CHE

Los Angeles, CA 90012

7

Attorney for City of Los Angeles

PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Attorney for City of Seattle

8

SUSAN L. SEGAL

9

City Attorney, City of Minneapolis

350 South 5th Street, Room 210

10

Minneapolis, MN 55415

Attorney for City of Minneapolis

11

FRANCIS X. WRIGHT, JR. City Solicitor, City of Somerville 93 Highland Avenue Somerville, MA 02143 Attorney for City of Somerville

12

BARBARA J. PARKER

City Attorney

13

Oakland City Attorney’s Office

1 Frank H. Ogawa Plaza, 6th floor

14

Oakland, CA 94612

Attorney for City of Oakland

15

JOSEPH E. FAHEY Interim Corporation Counsel City of Syracuse 233 East Washington Street, Suite 300 Syracuse, NY 13202 Attorney for City of Syracuse

16

TRACY REEVE

City Attorney

17

430 City Hall

1221 SW Fourth Avenue

18

Portland, OR 97204

Attorney for City of Portland

19

MICHAEL JENKINS City Attorney, City of West Hollywood Jenkins & Hogin, LLP 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Attorney for City of West Hollywood

20

TRISHKA WATERBURY CECIL

Princeton Municipal Attorney

21

Mason, Griffin & Pierson, P.C.

101 Poor Farm Road

22

Princeton, NJ 08540

Attorney for Municipality of Princeton

23

24

25

26

27

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on March 29, 2017, a copy of the foregoing Administrative Motion

3 for Leave to File Amicus Brief of 36 Cities and Counties, the Amicus Brief of 36 Cities and

4 Counties, and a Proposed Order were filed and served pursuant to the Court’s electronic filing

5 procedures using CM/ECF.

6

7

/s/ Kelly M. Dermody

8

Kelly M. Dermody

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 3:17-cv-00485-WHO Document 62-1 Filed 03/29/17 Page 1 of 18

1 Elizabeth J. Cabraser (State Bar No. 83151) Kelly M. Dermody (State Bar No. 171716)
2 Dean M. Harvey (State Bar No. 250298) Katherine C. Lubin (State Bar No. 259826)
3 Yaman Salahi (State Bar No. 288752) Michelle A. Lamy (State Bar No. 308174)
4 Philip M. Hernandez (State Bar No. 311111) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 29th Floor San Francisco, CA 94111-3339
6 Telephone: 415.956.1000 Facsimile: 415.956.1008
7 Attorneys for Amici Curiae City of Menlo Park and City of New Orleans
8
9 Additional Counsel for Amici Curiae Listed Below and in Appendix

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 CITY AND COUNTY OF SAN
14 FRANCISCO,

Case No. 3:17-cv-00485-WHO

15

Plaintiff,

AMICUS BRIEF OF 36 CITIES AND

16 v.

COUNTIES IN SUPPORT OF CITY AND COUNTY OF SAN FRANCISCO’S

17 DONALD J. TRUMP, President of the

MOTION FOR PRELIMINARY

United States, JOHN F. KELLY, Secretary INJUNCTION

18 of the United States Department of Homeland Security, JEFFERSON B.
19 SESSIONS, Attorney General of the United States, DOES 1-100,
20 Defendant.

Date: Time: Dept.: Judge:

April 14, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

21

22

23

24

25

26

27

28

1343860.2

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Case No. 3:17-cv-00485-WHO

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1

TABLE OF CONTENTS

2 3 I.

Page INTRODUCTION .............................................................................................................. 1

4 II. ADEQUATE RELIEF REQUIRES A NATIONWIDE INJUNCTION ............................ 2

5

A. The Court Has Broad Discretion to Fashion Nationwide Relief............................. 2

6

B. A Nationwide Injunction Is Particularly Appropriate Because the Executive

Order Is Unlawful on Its Face ................................................................................. 3

7

C. A Nationwide Injunction Is Necessary to Provide Adequate Relief....................... 4

8

III. SAN FRANCISCO IS VERY LIKELY TO SUCCEED ON THE MERITS..................... 5

9

A. The Executive Order Violates the Tenth Amendment. ........................................... 5

10

B. The Executive Order Is Unconstitutionally Vague. ................................................ 9

11

C. The Executive Order Violates Procedural Due Process........................................ 11

12

IV. THE PUBLIC INTEREST AND BALANCING OF THE HARDSHIPS WEIGH

13

IN FAVOR OF INJUNCTIVE RELIEF. .......................................................................... 12

14 V. CONCLUSION ................................................................................................................. 12

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Amici represent 36 cities and counties from across the country, home to 24,956,382

3 residents. Amici’s individual policies regarding 8 U.S.C. § 1373 and/or Immigration and

4 Customs Enforcement (“ICE”) civil detainer requests are diverse. Some Amici consider

5 themselves to be “sanctuaries,” while others do not. But all agree that Section 9 of President

6 Trump’s Executive Order 13768 violates the Constitution. All agree that this Court should grant

7 the preliminary injunction sought by the City and County of San Francisco.

8

President Trump has confirmed the unlawful purpose of his Executive Order: it is a

9 “weapon” to coerce cities, counties, and states into becoming de facto agents of the Executive

10 Branch, by threatening to entirely “defund” them and deny them “the money they need to

11 properly operate as a city or a state.” See Decl. of Cody S. Harris in Support of Mot. for Prelim.

12 Injunction, Ex. B at 4 (Dkt. 36) (transcript of Feb. 5, 2017 interview). But President Trump does

13 not have the ability to withhold Congressionally-authorized funding to jurisdictions that do not

14 govern according to his instructions, or that do not to conform to undefined standards that baffle

15 his own Secretary for Homeland Security. When asked by San Diego’s Police Chief to define

16 “sanctuary city,” Secretary Kelly responded: “I don’t have a clue.” See Harris Decl., Ex. D at 3

17 (Dep’t of Homeland Sec., Pool Notes From Secretary Kelly’s Trip to San Diego, Feb. 10, 2017).

18

Amici urge this Court to remove this unconstitutional “gun to the head,” Nat’l Fed’n of

19 Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 2604 (2012), by entering a nationwide

20 injunction. This remedy is warranted for three reasons. First, adequate relief cannot be provided

21 to San Francisco or Amici without a nationwide injunction. Such nationwide relief is particularly

22 appropriate where, as here, the challenged policy is unlawful on its face. Moreover, granting an

23 injunction only as to San Francisco would not provide complete relief to San Francisco, as it

24 receives significant funding and support from the State of California. Second, San Francisco will

25 very likely succeed on the merits. The Executive Order violates the Tenth Amendment because it

26 seeks to usurp local police power and commandeer scarce city and county resources. It violates

27 the Due Process Clause because its vague language fails to provide notice of what is prohibited

28 and encourages arbitrary enforcement. The Executive Order also fails to provide procedural due

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1 process, because no procedures exist to provide notice or review of decisions to withhold funding.

2 Third, the public interest and the balancing of hardships strongly favor granting a nationwide

3 injunction. The requested injunction would maintain the status quo and prevent enforcement of

4 an unconstitutional directive while the case is litigated on the merits.

5 II. 6 7

ADEQUATE RELIEF REQUIRES A NATIONWIDE INJUNCTION A. The Court Has Broad Discretion to Fashion Nationwide Relief District courts have “broad powers and wide discretion to frame the scope of appropriate

8 equitable relief.” Sec. & Exch. Comm’n v. United Fin.l Grp., Inc., 474 F.2d 354, 358-59 (9th

9 Cir. 1973). The scope of relief should be based on “the extent of the violation,” not the

10 “geographical extent” of the plaintiffs. Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (citation

11 omitted). “Once a court has obtained personal jurisdiction over a defendant, the court has the

12 power to enforce the terms of the injunction outside the territorial jurisdiction of the court,

13 including issuing a nationwide injunction.” United States v. AMC Entm’t, Inc., 549 F.3d 760, 770

14 (9th Cir. 2008).

15

District courts around the country have entered nationwide injunctions that limit the

16 federal government’s behavior vis-à-vis non-parties. See, e.g., State of Hawaii v. Trump, Case

17 No. 17-00050 DKW-KSC, Dkt. 219, slip op. at 42 (D. Haw. Mar. 15, 2017) (granting a TRO to

18 halt enforcement of executive order limiting entry into the United States); Int’l Refugee

19 Assistance Project v. Trump, Case No. 8:17-cv-00361-TDC, --- F.Supp.3d ---, 2017 WL

20 1018235, at *18 (D. Md. Mar. 16, 2017) (granting a nationwide preliminary injunction precluding

21 enforcement, in part, of executive order on a nationwide basis); Washington v. Trump, No. 17-

22 141, 2017 WL 462040, at *2 (W.D. Wash. Feb. 3, 2017) (preliminary injunction prohibited

23 implementation of executive order nationwide); Washington v. Trump, 847 F.3d 1151, 1166-67

24 (9th Cir. 2017) (holding government had failed to demonstrate it was likely to succeed on claim

25 that nationwide injunction was overbroad).

26

Defendants erroneously cite Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.

27 2004), for the proposition that injunctions must be limited to the parties (see Dkt. 46 at 19). Yet

28 Price actually held the opposite, affirming a broader injunction because “[e]ven though the effect

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1 of the injunction may benefit more people than those that are party to the action,” “the breadth of

2 the injunction was necessary to preserve the status quo” for plaintiffs. Id. at 1118. It is well-

3 established that an injunction is “not necessarily made over-broad by extending benefit or

4 protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—

5 if such breadth is necessary to give prevailing parties the relief to which they are entitled.”

6 Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987) (emphasis in original). Accord Prof’l

7 Ass’n of Coll. Educators, TSTA/NEA v. El Paso Cty. Cmty. Coll. Dist., 730 F.2d 258, 273-74 (5th

8 Cir. 1984).

9

B. A Nationwide Injunction Is Particularly Appropriate Because the Executive

Order Is Unlawful on Its Face 10

11

When a federal government policy is unlawful on its face, it is not only within the trial

12 court’s discretion to block implementation of the policy nationwide, but also the typical practice.

13 See, e.g., Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing

14 court determines that agency regulations are unlawful, the ordinary result is that the rules are

15 vacated—not that their application to the individual petitioners is proscribed.”); Earth Island Inst.

16 v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007), aff’d in part, rev’d in part sub nom. Summers v.

17 Earth Island Inst., 555 U.S. 488 (2009) (affirming nationwide injunction against a government 18 policy that was not authorized by law).1

19

Nationwide relief is also appropriate because the Executive Order, on its face, purports to

20 apply to all jurisdictions receiving federal funding, and thus constitutes the type of uniform and

21 widespread institutional policy or practice that the Court may enjoin as to all affected. Cf. Davis

22 v. Astrue, 874 F.Supp.2d 856, 868-69 (N.D. Cal. 2012) (“[W]here there is a systemwide injury

23 because of a policy or practice that pervades an institution, then widespread relief is justified to

24 remedy that injury.”) (citing Clement v. Cal. Dep’t of Corr., 364 F.3d 1148, 1153 (9th Cir. 2004)

25 1 Although claims challenging unlawful federal rules or policies often arise under the

26 Administrative Procedure Act, the same principle applies here. See, e.g., Washington v. Trump,

supra, 2017 WL 462040, at *2; Washington v. Trump, supra, 847 F.3d at 1166-67; Texas v.

27 United States, 809 F.3d 134, 188 (5th Cir. 2015); cf. City of Carmel-By-The-Sea v. U.S. Dep’t of

Transp., 123 F.3d 1142, 1166 (9th Cir. 1997) (“[U]nder certain circumstances, Executive Orders,

28 with specific statutory foundation, are treated as agency action and reviewed under the

Administrative Procedure Act.”).

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1 (enjoining enforcement of policy in all California prisons was proper because the policy was

2 applied system-wide)). In addition, a nationwide injunction is appropriate because San

3 Francisco’s challenges to the Executive Order are not premised on any unique applications as to 4 them, but rather, to the Executive Order itself.2 See, e.g., Nat’l Mining Ass’n. v. U.S. Army Corps

5 of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (when “a rule of broad applicability” is

6 challenged and the plaintiff prevails, “the result is that the rule is invalidated, not simply that the

7 court forbids its application to a particular individual”). Any facts particular to San Francisco

8 (such as those related to the likelihood of irreparable harm) are “illustrative” because the merits of

9 their claims turn on questions of statutory and constitutional interpretation applicable to all. See,

10 e.g., Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (affirming nationwide injunction

11 where district court’s analysis “relied primarily on the statute and regulation” and “used the

12 evidence on funding in Milwaukee County merely as illustration”).

13

Because the Executive Order is unlawful on its face, and because the Executive Order

14 itself purports to require all federally funded jurisdictions to comply with its mandates, injunctive

15 relief for all affected jurisdictions is appropriate, and would “fit[] the remedy to the wrong or

16 injury that has been established.” Salazar v. Buono, 559 U.S. 700, 718 (2010).

17

C. A Nationwide Injunction Is Necessary to Provide Adequate Relief

18

Nationwide relief is necessary for the additional reason that every city, county, and state

19 are interconnected with other jurisdictions throughout the country. President Trump’s threat to

20 use the Executive Order to “defund” offending jurisdictions is a weapon not only against those

21 jurisdictions, but against residents elsewhere who would be harmed if the federal government

22 denies cities, counties, or states “the money they need to properly operate[.]” Harris Decl., p. 4.

23

No local jurisdiction is an island unto itself: free movement of persons among cities and

24 counties is not only a fundamental right,3 but also a basic facet of modern life. A cut in funding

25 2 It follows that if San Francisco prevails on the merits, the Executive Order is illegal

26 everywhere, not simply in San Francisco. This challenge is thus clearly distinguishable from Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012), cited by Defendants, see Dkt.

27 46 at 19. There, the Ninth Circuit affirmed the district court’s refusal to issue a nationwide injunction because the plaintiff “failed to prove that [defendant’s] conduct outside Arizona was

28 illegal.” 673 F.3d at 1116. 3 United States v. Guest, 383 U.S. 745, 758 (1966) (“Freedom to travel throughout the United

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1 to one jurisdiction results in greater burdens on the services provided by nearby jurisdictions.

2 Local governments provide the vast majority of essential services to people living in this country.

3 Amici use federal funding (received directly or through other jurisdictions, such as counties and

4 states) to fund essential social services, such as hospitals that provide emergency health care to

5 the uninsured, disaster relief efforts, and programs that feed the hungry. “City government is

6 where the rubber meets the road. Cities pave our streets, fight crime and fires, prepare us for

7 disaster, bring water to our taps, take our trash away, build and maintain our parks—the list goes

8 on and on. These services cost money.” Texas Municipal League, How Cities Work (2013), at 1,

9 available at https://www.tml.org/HCW/HowCitiesWork.pdf. If San Francisco or any other

10 jurisdiction is targeted pursuant to the Executive Order, neighboring cities, counties, and states

11 will suffer a greater demand for their services, and suffer consequences to their residents of

12 neighboring jurisdictions unable to “properly operate.”

13

Contrary to Defendants’ assertions, “the larger interests of society” would be served by a

14 nationwide injunction. Envtl. Def. Fund. v. Marsh, 651 F.3d 983, 1006 (5th Cir. 1981); see Dkt.

15 46 at 20.

16 III. SAN FRANCISCO IS VERY LIKELY TO SUCCEED ON THE MERITS.

17

A. The Executive Order Violates the Tenth Amendment.

18

The Supreme Court has long recognized that “[t]he Constitution requires a distinction

19 between what is truly national and what is truly local.” United States v. Morrison, 529 U.S. 598,

20 617-18 (2000). It is the states and local governments, not the federal government, that “can and

21 do perform many of the vital functions of modern government—punishing street crime, running

22 public schools, and zoning property for development, to name but a few. . . .” Sebelius, 132 S.Ct.

23 at 2578. This unique domain of authority, which “the Founders denied the National Government

24 and reposed in the States,” is the “police power.” Morrison, 529 U.S. at 618.

25

By entrusting this police power to local and state governments, the Founders “ensured that

26 powers which in the ordinary course of affairs, concern the lives, liberties, and properties of the

27 people were held by governments more local and more accountable than a distant federal

28

States has long been recognized as a basic right under the Constitution.”).

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1 bureaucracy.” Sebelius, 132 S.Ct. at 2578. Because state and local governments are better

2 positioned to carry out the daily tasks of governance, “[o]nce we are in this domain of the reserve

3 power of a State, we must respect the wide discretion on the part of the legislature in determining

4 what is and is not necessary.” East N.Y. Sav. Bank v. Hahn, 326 U.S. 230, 233 (1945).

5

The Executive Order interferes with that discretion in a core realm of local governance:

6 the setting of enforcement priorities for local police and sheriff’s departments. There is “no better

7 example of the police power, which the Founders denied the National Government and reposed in

8 the States, than the suppression of violent crime and vindication of its victims.” Morrison, 529

9 U.S. at 618. Local law enforcement authorities are entrusted to carry out that role, but the

10 Executive Order impairs their ability to do so: it deprives local governments of the power to make

11 policy judgments about local safety needs, and replaces these local judgments with the

12 President’s unilateral preferences. Even Congress, pursuant to its exclusive legislative power,

13 U.S. Const. art. I, § 1, could not use that power to so intrude on state and local prerogatives. See

14 New York v. United States, 505 U.S. 144, 162 (1992) (“[T]he Constitution has never been

15 understood to confer upon Congress the ability to require the States to govern according to

16 Congress’ instructions.”) (emphasis added). It follows, then, that the President may not do so by

17 executive fiat, particularly when doing so conflicts with duly enacted congressional

18 appropriations that contain none of the conditions the Executive Order imposes. Cf. In re Aiken

19 Cnty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013) (“[E]ven the President does not have unilateral 20 authority to refuse to spend the funds.”).4

21

Amici respectfully submit that decisions as to whether local law enforcement authorities

22 should deploy their limited resources to collect information related to immigration status or share

23 that information with federal authorities must rest with local governments and the States. Local

24 authorities are best positioned to assess their enforcement priorities, weigh the costs and benefits

25

26 4 Thus, the Executive Order also violates the separation of powers, as the President has no

27

Congressional authorization to impose the spending limits. See U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the

28 Debts and provide for the common Defence and general Welfare of the United States . . . . ”) (emphasis added).

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1 of different options, and make judgments about what will best promote the safety of their

2 communities. Moreover, local officials ultimately assume the burden of, and can be held

3 accountable to their communities for, their policy choices. Cf. New York, 505 U.S. at 169

4 (“[W]here the Federal Government directs the States to regulate, it may be state officials who will

5 bear the brunt of public disapproval, while the federal officials who devised the regulatory

6 program may remain insulated from the electoral ramifications of their decision.”); Printz v.

7 United States, 521 U.S. 898, 920 (1997) (“The Constitution thus contemplates that a State’s

8 government will represent and remain accountable to its own citizens.”).

9

Based on decades of on-the-ground experience, some of the Amici jurisdictions have

10 concluded that their mission of preventing crime and protecting victims can be thwarted by

11 certain activities that amount to enforcement of federal immigration laws by local officials, such

12 as collecting and producing information about immigration status from persons who are victims

13 or witnesses of crimes. See, e.g., CA TRUST Act, 2013 Cal. Legis. Serv. Ch. 570 (A.B. 4) § 1(d)

14 (finding that such activities “harm community policing efforts because immigrant residents who

15 are victims of or witnesses to crime, including domestic violence, are less likely to report crime or

16 cooperate with law enforcement when any contact with law enforcement could result in 17 deportation”).5 Courts have also recognized that compelled disclosure of immigration status may

18

19 5 See also Governor of Illinois Pat Quinn, Executive Order Establishing Governor’s New

Americans Trust Initiative, Jan. 5, 2015 at 1, available at

20 http://www.catrustact.org/uploads/2/5/4/6/25464410/quinn_executive_order2015-02-1.pdf

(“community policing efforts are hindered when immigrant residents who are victims of or

21 witnesses to crime, including domestic violence, are less likely to report crime or cooperate with

law enforcement out of fear that any contact with law enforcement could result in deportation”);

22 Resolution dated May 21, 2012, City of Amherst, Massachusetts, available at

http://www.catrustact.org/uploads/2/5/4/6/25464410/amherst_resolution_2012.pdf (finding that

23 federal immigration cooperation “has already been shown to increase distrust and fear of local

authorities, making many immigrants afraid to be witnesses and report crimes against themselves

24 and others”); San Francisco’s “Due Process for All and Sanctuary” Ordinance, § 12I.1, passed

Jun. 7, 2016, available at

25 http://www.catrustact.org/uploads/2/5/4/6/25464410/sf_due_process_ordinance_2016.pdf

(finding that “civil immigration detainers and notifications regarding release undermine

26 community trust of law enforcement by instilling fear in immigrant communities of coming

forward to report crimes and cooperate with local law enforcement agencies”); King County,

27 Ordinance 17706, § 1(A), passed Dec. 3, 2013, available at

http://www.catrustact.org/uploads/2/5/4/6/25464410/king_co_ice_detainer_requests_ordinance_1

28 2-2-13.pdf (“[t]estimony established that the threat of deportation for the immigrant community is

so strong that many persons are afraid to report domestic violence or witnessed crime”).

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1 result in “countless acts of illegal and reprehensible conduct [going] unreported,” as victims or

2 witnesses may be chilled from reporting or complaining about unlawful conduct. See, e.g.,

3 Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004) (preventing employer defendant from

4 discovering immigration status of Title VII plaintiffs alleging national origin discrimination).

5

Amici do not address the independent conclusion of each Amicus jurisdiction on this

6 issue, but collectively they contend that each locality must be able to independently evaluate its

7 own needs and set its own priorities according to its judgment. By upending the independent

8 judgment of local officials responsible for “the suppression of violent crime and vindication of its

9 victims,” Morrison, 529 U.S. at 618, the Executive Order intrudes upon a power reserved for the

10 states and local governments, and threatens to undermine the mission of local law enforcement.

11

The Executive Order accomplishes its unconstitutional task by seeking to commandeer the

12 scarce resources of local governments. In effect, the Executive Order “impress[es] into [the

13 federal government’s service]—and at no cost to itself—the police officers of the 50 states.”

14 Printz, 521 U.S. at 922; see Executive Order § 9(a) (applying to any “statute, policy, or practice

15 that prevents or hinders the enforcement of Federal law”)). Unless cities, counties, and states

16 acquiesce, they face the risk of losing nearly all federal funding, no matter how unrelated that

17 funding is to the federal government’s immigration enforcement regime or local law

18 enforcement’s responsibilities.

19

The Constitution forbids such coercion. When conditions on federal funding “take the

20 form of threats to terminate other significant independent grants, the conditions are properly

21 viewed as a means of pressuring the States to accept policy changes.” Sebelius, 132 S.Ct., at

22 2603-04. Such conditions cross the line from “encouragement” to “coercion” when, as here, they

23 are not related to the purposes of the federal funding in question, becoming the equivalent of “a

24 gun to the head.” Id. Just as “the Federal Government may not compel the States to enact or

25 administer a federal regulatory program” through direct regulation, New York, 505 U.S. at 188;

26 see also Printz, 521 U.S. at 926, it may not achieve the same end through “economic dragooning

27 that leaves the States [and localities] with no real option but to acquiesce” to the federal

28 government’s demands. Sebelius, 132 S.Ct. at 2605. If the Tenth Amendment were to permit the

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1 funding conditions set forth in the Executive Order, there is virtually no limit on the President’s

2 unilateral authority to create and enforce new conditions on all federal funding to compel all

3 cities, counties, and states to adopt whatever policy he happens to favor at the moment. This

4 usurpation of power is contrary to our system of federalism and violates the Constitution.

5

B. The Executive Order Is Unconstitutionally Vague.

6

The Executive Order provides no guidance as to what acts will subject a jurisdiction to the

7 Executive Order’s funding restrictions, and is thus unconstitutionally vague in violation of the

8 Due Process Clause. A law is void for vagueness where it (1) “fails to provide a person of

9 ordinary intelligence fair notice of what is prohibited,” or (2) “is so standardless that it authorizes

10 or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285,

11 304 (2008); Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 740 (1970) (law is unconstitutionally

12 vague where it “exposes a potential actor to some risk or detriment without giving him fair

13 warning of the nature of the proscribed conduct”). The vagueness standards of the Due Process

14 Clause apply to executive orders. See United States v. Hescorp, Heavy Equip. Sales Corp., 801

15 F.2d 70, 77 (2d Cir. 1986); United States v. Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002).

16

Like San Francisco, Amici cannot know, based on the Executive Order, whether they are

17 at risk of having federal funds withheld. The Executive Order states that “sanctuary jurisdictions”

18 will be unable to receive federal grants except as necessary for law enforcement, and directs that

19 the Attorney General shall “take appropriate enforcement action against any entity that violates 8

20 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

21 enforcement of Federal law.” Executive Order § 9(a) (emphasis added).

22

But the question of what action (or inaction) by a local jurisdiction “violates 8 U.S.C.

23 1373” remains unanswered by the Executive Order. Is declining to honor ICE civil detainer 24 requests sufficient for the Secretary to deem a local jurisdiction a “sanctuary jurisdiction”?6 The

25 6 Just last week, ICE released its first “Declined Detainer Outcome Report,” a weekly report—

26 which the Executive Order mandates, § 9(b)—listing every jurisdiction that failed to honor even a

single ICE detainer request, regardless of the reason. See Enforcement and Removal Operations,

27 Weekly Declined Detainer Outcome Report for Recorded Declined Detainers Jan. 28 - Feb. 3,

2017 (Mar. 20, 2017), available at https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf.

28 That same day, Attorney General Sessions issued a statement decrying the cities and counties on

this list, and claiming the Department of Justice will “hold accountable jurisdictions that willfully

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1 language of Section 1373 provides only that a “local government entity or official may not

2 prohibit, or in any way restrict, any government entity or official from sending to, or receiving

3 from, [federal immigration officials] information regarding the citizenship or immigration status

4 . . . of any individual,” (8 U.S.C. § 1373). It is silent about ICE civil detainer requests. Further,

5 courts have held that detaining individuals pursuant to a civil detainer request from ICE, when

6 those individuals would otherwise have been released from custody, violates the Fourth

7 Amendment. See, e.g., Morales v. Chadbourne, 793 F.3d 208, 215-16 (1st Cir. 2015); Orellana

8 v. Nobles Cnty., No. CV 15-3852 ADM/SER, 2017 WL 72397, at *9 (D. Minn. Jan. 6, 2017); cf.

9 South Dakota v. Dole, 483 U.S. 203, 210 (1987) (Congress may not use spending power “to

10 induce the States to engage in activities that would themselves be unconstitutional”).

11

Nor can Amici know what activity is prohibited by the Executive Order’s statement that

12 “enforcement action” may be taken against any entity that has a “statute, policy, or practice that

13 prevents or hinders the enforcement of Federal law.” Executive Order § 9(a). Some jurisdictions

14 may read this language as encompassing decisions not to honor ICE civil detainer requests, while

15 others may not. None of the Amici can anticipate how the Attorney General and Secretary will

16 interpret and apply the Executive Order’s ambiguous directives, currently making it impossible

17 for Amici to make informed decisions about the course of conduct they can pursue without risk of

18 adverse consequences under the Executive Order.

19

Because the Executive Order is “too vague and subjective” for entities “to know how they

20 should behave in order to comply, as well as too vague to limit arbitrary enforcement,” it is 21 unconstitutional.7 Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 554-55 (9th Cir. 2004).

22 violate federal law”—while never specifying which federal law he believes these jurisdictions

23 have violated. Statement on the U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (Mar. 20, 2017), available at https://www.justice.gov/opa/pr/statement-attorney-

24 general-jeff-sessions-us-immigration-and-customs-enforcement-declined. 7 Two days ago, Attorney General Sessions delivered a statement to the White House press corps

25 that drove home the confusion caused by the challenged Executive Order. Statement on

Sanctuary Jurisdictions (Mar. 27, 2017), available at

26 https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-

jurisdictions. Mr. Sessions reiterated the Administration’s threat to revoke federal funds from

27 sanctuary jurisdictions, but the only grants he discussed related to law enforcement—that is, the

only funds the Executive Order (per § 9(a)) says should not be revoked. And though Mr. Sessions

28 claimed this was “entirely consistent” with prior DOJ policy, the Obama Administration made

clear that its 2016 guidance conditioning certain DOJ funds on compliance with § 1373 would

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1

C. The Executive Order Violates Procedural Due Process.

2

Upon being labeled “sanctuary jurisdictions” by the Secretary, cities, counties, and states

3 will purportedly lose existing federal funding and be denied future funding, without being

4 provided notice of the designation or an opportunity to be heard to challenge the designation.

5 This violates their due process rights.

6

A law violates procedural due process when the plaintiff has (1) a protectable property

7 interest; and (2) inadequate procedural protections. Foss v. Nat’l Marine Fisheries Serv., 161

8 F.3d 584, 588 (9th Cir.1998); see also Thornton v. City of St. Helens, 425 F.3d 1158, 1164-65

9 (9th Cir. 2005). To have a protectable property interest, a person must “have a legitimate claim

10 of entitlement to it,” rather than merely “an abstract need or desire for it.” Bd. of Regents of State

11 Colls. v. Roth, 408 U.S. 564, 577 (1972). See also Perry v. Sindermann, 408 U.S. 593, 601-603

12 (1972) (an “interest in a benefit is a ‘property’ interest for due process purposes if there are such

13 rules or mutually explicit understandings that support his claim of entitlement to the benefit”).

14

San Francisco—like all Amici8—has a legitimate claim of entitlement to, at the very least,

15 federal grants that have already been awarded and which they have already agreed to accept

16 according to “rules and understandings, promulgated and fostered” by federal officials. Perry, 17 408 U.S. at 602.9 Thus, at minimum,10 jurisdictions have a property interest in federal funds that

18

19 apply only prospectively, whereas Mr. Sessions threatened to “claw-back” funds already

disbursed. Id.; see Off. of Justice Programs, Additional Guidance Regarding Compliance with 8 20 U.S.C. § 1373 (Oct. 6, 2016) (“No FY 2016 or prior year [DOJ] funding will be impacted.”),

available at https://www.bja.gov/funding/Additional-BJA-Guidance-on-Section-1373-October-621 2016.pdf.

22

8 Under Ninth Circuit law, counties may be “persons” entitled to due process for some purposes. See Cnty. of Santa Cruz v. Sebelius, 399 F. App’x 174, 176 (9th Cir. 2010) (Medicare payments).

23 9 That certain federal grants have already been awarded to San Francisco and other cities and counties distinguishes this claim from cases where courts have held that discretionary funding

24 decisions do not give rise to due process protections. See, e.g., Doyle v. City of Medford, 606 F.3d 667, 672 (9th Cir. 2010) (government program that granted decision-maker broad discretion

25 does not create a property interest). 10 Cities and counties also have a protected property and liberty interest in avoiding placement on

26 the Order’s blacklist of “sanctuary jurisdictions,” a designation that carries the purported

consequence of ineligibility for federal funding. Cf. Nat’l Council of Resistance of Iran v. Dep’t

27 of State, 251 F.3d 192, 204-205 (D.C. Cir. 2001) (holding that due process protections applied to

Secretary of State’s designation of group as a “foreign terrorist organization” because

28 consequences of designation included, inter alia, loss of property and money); Al Haramain

Islamic Found., Inc. v. U.S. Dep’t. of Treasury, 686 F.3d 965, 985 (9th Cir. 2011).

-11-

AMICUS BRIEF OF 36 CITIES AND COUNTIES ISO SAN FRANCISCO’S PRELIM. INJUNCTION MOTION

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Case 3:17-cv-00485-WHO Document 62-1 Filed 03/29/17 Page 14 of 18

1 had already been awarded to them prior to the Executive Order.11 “[S]ome form of hearing is

2 required” before the final deprivation of a property interest. Mathews v. Eldridge, 424 U.S. 319,

3 333 (1976); see also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981)

4 (“Though Congress’ power to legislate under the spending power is broad, it does not include

5 surprising participating States with post acceptance or ‘retroactive’ conditions.”).

6 IV. THE PUBLIC INTEREST AND BALANCING OF THE HARDSHIPS WEIGH IN FAVOR OF INJUNCTIVE RELIEF.
7

8

In deciding a motion for preliminary injunction, courts “balance the competing claims of

9 injury” on each party and pay “particular regard for the public consequences” of awarding or

10 withholding the remedy. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). When the

11 government is the opposing party, the balancing of hardships and public interest merge. Nken v.

12 Holder, 556 U.S. 418, 435 (2009). There is no “blanket presumption in favor of the government”

13 in preliminary injunction cases. Rodriguez v. Robbins, 715 F.3d 1127, 1146 (9th Cir. 2013).

14

In light of the Executive Order’s constitutional infirmities, the balancing of hardships and

15 the public interest weigh in favor of granting nationwide injunctive relief for cities and counties.

16 See, e.g., Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1290 (11th Cir.

17 2013) (“the public has no interest in the enforcement of . . . an unconstitutional statute”). This

18 remedy would preserve the status quo and “merely return[] the nation temporarily to the position

19 it has occupied for many previous years.” See Washington, 847 F.3d at 1168; see also N.Y.

20 Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (explaining that the

21 government “does not have an interest in the enforcement of an unconstitutional law”).

22 V. 23

CONCLUSION Amici respectfully urge the Court to issue a nationwide preliminary injunction enjoining

24 Defendants from enforcing or implementing the Executive Order.

25

26

27 11 The federal government has not taken a position on whether the Executive Order applies to

28 reimbursements, though as noted above Attorney General Sessions threatened to “claw-back”

funds already awarded if jurisdictions do not fall in line. See supra note 7.

-12-

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Case 3:17-cv-00485-WHO Document 62-1 Filed 03/29/17 Page 15 of 18

1 Dated: March 29, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1343860.2

Respectfully submitted,
By: /s/ Kelly M. Dermody
Elizabeth J. Cabraser Kelly M. Dermody Dean M. Harvey Katherine C. Lubin Yaman Salahi Michelle A. Lamy Philip M. Hernandez LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94117-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
Attorneys for Amici Curiae City of Menlo Park and City of New Orleans
Kirsten Keith Mayor, City of Menlo Park 701 Laurel Street Menlo Park, CA 94025 Telephone: 650.308.4618
Mayor of Amicus Curiae City of Menlo Park
Rebecca H. Dietz City Attorney, City of New Orleans 1300 Perdido Street, Suite 5E03 New Orleans, LA 70112 Telephone: 504.658.9800
Attorney for Amicus Curiae City of New Orleans
Additional Counsel for Amici Curiae Listed in Appendix

-13-

AMICUS BRIEF OF 36 CITIES AND COUNTIES ISO SAN FRANCISCO’S PRELIM. INJUNCTION MOTION
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 62-1 Filed 03/29/17 Page 16 of 18

1

APPENDIX

2

Additional Counsel for Amici Curiae

3

4

DONNA R. ZIEGLER

5

County Counsel, County of Alameda 1221 Oak Street, Suite 450

6

Oakland, CA 94612 Attorney for County of Alameda

7

8

KIMBERLY M. FOXX States Attorney for Cook County

9

69 W. Washington, 32nd Floor Chicago, IL 60602

10

Attorney for Cook County

CHARLES J. MCKEE County Counsel, County of Monterey 168 West Alisal Street Salinas, CA 93901 Attorney for County of Monterey
DANA MCRAE County Counsel 701 Ocean Street, Room 505 Santa Cruz, CA 95060 Attorney for County of Santa Cruz

11

H. Kevin Wright

12

Chief Civil Deputy For DAN SATTERBERG

13

King County Prosecuting Attorney 516 Third Avenue, W400

14

Seattle, WA 98104 Attorney for King County

15

16

MARGARET L. CARTER APALLA U. CHOPRA

17

JAMES W. CROOKS O’Melveny & Myers LLP

18

400 S. Hope Street, 18th Floor Los Angeles, CA 90071

19

Attorney for County of Los Angeles

20

21

BRIAN E. WASHINGTON County Counsel

22

3501 Civic Center Drive, Room 275 San Rafael, CA 94903

23

Attorney for County of Marin

SHIRLEE ZANE Chair, Board of Supervisors County of Sonoma 575 Administration Drive, Room 100A Santa Rosa, CA 95403 For County of Sonoma
DAVID A. ESCAMILLA Travis County Attorney SHERINE E. THOMAS Assistant County Attorney Travis County Attorney’s Office P.O. Box 1748 Austin, Texas 78767 Attorneys for Travis County

24

25

26

27

28

1343860.2

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1

WILLIAM G. KELLY, JR.

Interim Corporation Counsel

2

Department of Law

City Hall

3

Albany, NY 12207

Attorney for City of Albany

4

JAMES SANCHEZ City Attorney Sacramento City Attorney’s Office 915 I Street, Fourth Floor Sacramento, CA 95814 Attorney for City of Sacramento

5

ANNE L. MORGAN

City Attorney

6

City of Austin Law Department

P.O. Box 1088

7

Austin, TX 78767

Attorney for City of Austin

8

SAMUEL J. CLARK City Attorney, City of Saint Paul 400 City Hall 15 Kellogg Blvd W Saint Paul, MN 55102 Attorney for City of Saint Paul

9

ZACH COWAN

City Attorney, City of Berkeley

10

2180 Milvia Street, Fourth Floor

Berkeley, CA 94704

11

Attorney for City of Berkeley

CHRISTOPHER A. CALLIHAN City Attorney, City of Salinas 200 Lincoln Avenue Salinas, CA 93901 Attorney for City of Salinas

12

STANLEY E. HENRY

13

Mayor, City of Cathedral City

68700 Avenida Lalo Guerrero

14

Cathedral City, CA 92234

For City of Cathedral City

15

MARGARET D. PLANE City Attorney, Salt Lake City Corp. 451 S. State Street, Suite 505A P.O. Box 145478 Salt Lake City, UT 84114 Attorney for Salt Lake City

16

EDWARD N. SISKEL

17

Corporation Counsel

30 N. LaSalle Street, Suite 800

18

Chicago, IL 60602

Attorney for City of Chicago

19

SONIA R. CARVALHO City Attorney, City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Attorney for City of Santa Ana

20

KRISTIN M. BRONSON

City Attorney, City and County of Denver

21

1437 Bannock Street, Room 353

Denver, CO 80202

22

Attorney for City and County of Denver

BRIAN DOYLE Interim City Attorney 1500 Warburton Avenue Santa Clara, CA 95050 Attorney for City of Santa Clara

23

RAFAEL E. ALVARADO JR.

24

City Attorney, City of East Palo Alto

2415 University Avenue, 2nd Floor

25

East Palo Alto, CA 94303

Attorney for City of East Palo Alto

26

KELLEY BRENNAN City Attorney, City of Santa Fe P.O. Box 909 Santa Fe, NM 87501 For City of Santa Fe

27

28

1343860.2

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1

JEREMY FARRELL

Corporation Counsel

2

Jersey City Law Department

City Hall – 280 Grove Street

3

Jersey City, NJ 07302

Attorney for Jersey City

4

JOSEPH LAWRENCE Interim City Attorney, City of Santa Monica 1685 Main Street, Suite 310 Santa Monica, CA 90401 Attorney for City of Santa Monica

5

MICHAEL N. FEUER

City Attorney, City of Los Angeles

6

200 N. Main Street, 800 CHE

Los Angeles, CA 90012

7

Attorney for City of Los Angeles

PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Attorney for City of Seattle

8

SUSAN L. SEGAL

9

City Attorney, City of Minneapolis

350 South 5th Street, Room 210

10

Minneapolis, MN 55415

Attorney for City of Minneapolis

11

FRANCIS X. WRIGHT, JR. City Solicitor, City of Somerville 93 Highland Avenue Somerville, MA 02143 Attorney for City of Somerville

12

BARBARA J. PARKER

City Attorney

13

Oakland City Attorney’s Office

1 Frank H. Ogawa Plaza, 6th floor

14

Oakland, CA 94612

Attorney for City of Oakland

15

JOSEPH E. FAHEY Interim Corporation Counsel City of Syracuse 233 East Washington Street, Suite 300 Syracuse, NY 13202 Attorney for City of Syracuse

16

TRACY REEVE

City Attorney

17

430 City Hall

1221 SW Fourth Avenue

18

Portland, OR 97204

Attorney for City of Portland

19

MICHAEL JENKINS City Attorney, City of West Hollywood Jenkins & Hogin, LLP 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Attorney for City of West Hollywood

20

TRISHKA WATERBURY CECIL

Princeton Municipal Attorney

21

Mason, Griffin & Pierson, P.C.

101 Poor Farm Road

22

Princeton, NJ 08540

Attorney for Municipality of Princeton

23

24

25

26

27

28

1343860.2

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Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 62-2 Filed 03/29/17 Page 1 of 2

1 Elizabeth J. Cabraser (State Bar No. 83151) Kelly M. Dermody (State Bar No. 171716)
2 Dean M. Harvey (State Bar No. 250298) Katherine C. Lubin (State Bar No. 259826)
3 Yaman Salahi (State Bar No. 288752) Michelle A. Lamy (State Bar No. 308174)
4 Philip M. Hernandez (State Bar No. 311111) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
5 275 Battery Street, 29th Floor San Francisco, CA 94111-3339
6 Telephone: 415.956.1000 Facsimile: 415.956.1008
7 Attorneys for Amici Curiae City of Menlo Park and City of New Orleans
8
9 Additional Counsel for Amici Curiae Listed in Amicus Brief and Appendix

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 CITY AND COUNTY OF SAN
14 FRANCISCO,

Case No. 3:17-cv-00485-WHO

15

Plaintiff,

[PROPOSED] ORDER GRANTING

16 v.

ADMINISTRATIVE MOTION FOR LEAVE TO FILE AMICUS BRIEF OF

17 DONALD J. TRUMP, President of the

36 CITIES AND COUNTIES IN

United States, JOHN F. KELLY, Secretary SUPPORT OF CITY AND COUNTY OF

18 of the United States Department of Homeland Security, JEFFERSON B.
19 SESSIONS, Attorney General of the United States, DOES 1-100,
20 Defendant.
21

SAN FRANCISCO’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept.: Judge:

April 14, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

22

23

24

25

26

27

28

1344143.1

ORDER GRANTING ADMIN. MOTION FOR LEAVE TO FILE AMICUS BRIEF OF 36 CITIES & COUNTIES
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 62-2 Filed 03/29/17 Page 2 of 2

1

[PROPOSED] ORDER

2

On March 29, 2017, 36 Cities and Counties filed an Administrative Motion for Leave to

3 File an Amicus Brief in Support of City and County of San Francisco’s Motion for Preliminary

4 Injunction. Having considered the papers and pleadings on file, the Court hereby GRANTS the

5 Administrative Motion and ORDERS that the Amicus Brief be filed.

6

7

IT IS SO ORDERED.

8

9 DATED: ________________________ _____________________________________

Honorable William H. Orrick

10

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1344143.1

ORDER GRANTING ADMIN. MOTION FOR LEAVE

-1-

TO FILE AMICUS BRIEF OF 36 CITIES & COUNTIES

Case No. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 63 Filed 03/29/17 Page 1 of 6

1 NEVIN M. GEWERTZ

2

nevin.gewertz@bartlit-beck.com ABBY M. MOLLEN

3 abby.mollen@bartlit-beck.com BARTLIT BECK HERMAN PALENCHAR
4 & SCOTT LLP

5

54 West Hubbard Street, Suite 300 Chicago, IL 60654

6 Telephone: (312) 494-4400

7

Facsimile: (312) 494-4440 Attorneys for AMICI CURIAE

8 CONSTITUTIONAL LAW SCHOLARS

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

12

13

14 CITY AND COUNTY OF SAN
15 FRANCISCO,

Case No. 3:17-cv-00485-WHO

16

Plaintiff,

v.

17

DONALD J. TRUMP, President of the

18 United States of America, UNITED

STATES OF AMERICA, JOHN F.

19 KELLY, Secretary of the United States

Department of Homeland Security,

20 JEFFERSON B. SESSIONS, Attorney

General of the United States, DOES 1-100,

21

Defendants.

22

23

24

NOTICE OF MOTION AND ADMINISTRATIVE MOTION OF CONSTITUTIONAL LAW SCHOLARS FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dep’t: Judge:

April 12, 2017 2:00 pm Courtroom 2 Hon. William H. Orrick

Date Filed: March 29, 2017

Trial Date: Not yet set

25

26

27

28

ADMINISTRATIVE MOTION OF CONSTIUTIONAL LAW SCHOLARS TO FILE AMICUS CURIAE BRIEF Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63 Filed 03/29/17 Page 2 of 6

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE THAT Raquel Aldana, Michelle Wilde Anderson, Hadar

3 Aviram, W. David Ball, Lenni B. Benson, Gabriel J. Chin, Ingrid V. Eagly, William H.D.

4 Fernholz, Katherine J. Florey, Gerald E. Frug, Bill Ong Hing, Alison L. LaCroix, Sanford

5 V. Levinson, Karl Manheim, Maya Manian, Hiroshi Motomura, James Gray Pope, Darien

6 Shanske, Fred Smith, Jr., Ilya Somin, Elissa Steglich, Rose Cuison-Villazor, Michael

7 Vitiello, Alexander “Sasha” Volokh, Keith Whittington, and Ernest Young hereby move

8 the Court for leave to file an amicus brief in the above-captioned case in support of

9 Plaintiff’s motion for preliminary injunction. Defendants take no position on the request.

10 A copy of the proposed amicus brief is appended as an exhibit to this motion.

11 I. STANDARD FOR LEAVE TO FILE BRIEF OF AMICI CURIAE

12

The Court has indicated a willingness to consider amicus briefs in this case. See

13 D.I. 31 (Order Regarding Amicus Briefing). The Court has broad discretion to permit third

14 parties to participate in an action as amici curiae. Gerritsen v. de la Madrid Hurtado, 819

15 F.2d 1511, 1514 n.3 (9th Cir. 1987); Woodfin Suite Hotels, LLC v. City of Emeryville, No.

16 C 06-1254 SBA, 2007 WL 81911, at *3 (N.D. Cal. Jan. 9, 2007). Participation of amici

17 curiae may be particularly appropriate where legal issues in a case have potential

18 ramifications beyond the parties directly involved or where amici can offer a unique

19 perspective to aid the Court. Sonoma Falls Dev., LLC v. Nev. Gold & Casinos, Inc., 272 F.

20 Supp. 2d 919, 925 (N.D. Cal. 2003).

21 II. STATEMENT OF IDENTITY OF AMICI CURIAE

22

Amici are law professors and scholars of constitutional law, including those who

23 have taught, written, and spoken on the topics of Federalism, the Federal Government’s

24 spending power, and the Tenth Amendment. Amici wish to offer their expertise regarding

25 the principles that inform whether Executive Order No. 13,768, 82 Fed. Reg. 8799 (Jan.

26 25, 2017) (the “Executive Order” or the “Order”) complies with constitutional limits on the

27 Federal Government’s ability to compel State and local Governments to adopt or

28 administer federal law.

ADMINISTRATIVE MOTION OF CONSTIUTIONAL LAW SCHOLARS TO FILE AMICUS CURIAE BRIEF Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63 Filed 03/29/17 Page 3 of 6

1

Amici are (all institutional affiliations are for identification purposes only):

2

 Raquel Aldana, McGeorge School of Law, University of the Pacific

3

 Michelle Wilde Anderson, Stanford Law School

4

 Hadar Aviram, University of California Hastings College of the Law

5

 W. David Ball, Santa Clara School of Law

6

 Lenni B. Benson, New York Law School

7

 Gabriel J. Chin, University of California, Davis School of Law

8

 Ingrid V. Eagly, University of California Los Angeles School of Law

9

 William H.D. Fernholz, University of California Berkeley School of Law

10

 Katherine J. Florey, University of California Davis School of Law

11

 Gerald E. Frug, Harvard Law School

12

 Bill Ong Hing, University of San Francisco School of Law

13

 Alison L. LaCroix, University of Chicago Law School

14

 Sanford V. Levinson, University of Texas School of Law

15

 Karl Manheim, Loyola Law School, Los Angeles

16

 Maya Manian, University of San Francisco School of Law

17

 Hiroshi Motomura, University of California Los Angeles School of Law

18

 James Gray Pope, Rutgers Law School

19

 Darien Shanske, University of California Davis School of Law

20

 Fred Smith, Jr., University of California Berkeley School of Law

21

 Ilya Somin, George Mason University, Antonin Scalia Law School

22

 Elissa Steglich, University of Texas School of Law

23

 Rose Cuison-Villazor, University of California Davis School of Law

24

 Michael Vitiello, McGeorge School of Law, University of the Pacific

25

 Alexander “Sasha” Volokh, Emory University School of Law

26

 Keith Whittington, Princeton University

27

 Ernest Young, Duke University School of Law

28

ADMINISTRATIVE MOTION OF CONSTIUTIONAL LAW SCHOLARS TO FILE AMICUS CURIAE BRIEF Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63 Filed 03/29/17 Page 4 of 6

1 III. AMICI CURIAE’S EXPERTISE WILL BENEFIT THIS COURT

2

Due to the constitutional law and Federalism issues presented by the Executive

3 Order, Amici believe that their expertise will benefit the Court. In particular, Amici wish

4 to offer their expertise regarding the Supreme Court’s jurisprudence on the limits of the

5 Federal Government’s authority to force State and local governments to administer federal

6 law. Amici believe the Executive Order may implicate that jurisprudence. Amici also

7 believe, given the significance of the constitutional values at stake, that it is essential that

8 questions concerning the Federal Government’s authority be thoroughly understood and

9 correctly resolved. Finally, Amici believe that their expertise may be of particular use to

10 the Court given the role Federalism plays as a structural protection of individual liberty

11 and political accountability and thus, by extension, the potential ramifications that the

12 issues before the Court may have beyond the parties to the cases.

13

Accordingly, Amici respectfully offer their analysis of these issues to assist the

14 Court in its deliberations.

15

CONCLUSION

16

For the foregoing reasons, the above-listed amici respectfully request this Court’s

17 leave to submit the attached Amicus Curiae brief.

18

19

20

21

22

23

24

25

26

27

28

ADMINISTRATIVE MOTION OF CONSTIUTIONAL LAW SCHOLARS TO FILE AMICUS CURIAE BRIEF Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63 Filed 03/29/17 Page 5 of 6

1 March 29, 2017 2

BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP

3

By: /s/ Nevin M. Gewertz

4

Nevin M. Gewertz*

5

Abby M. Mollen*

6

Attorneys for Amici Curiae

Constitutional Law Scholars 7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 * Admitted to practice in the United States District Court for the Northern District of

27

Illinois. See D.I. 31 (Order Regarding Amicus Briefs) (waiving the pro hac vice requirements of Northern District of California Local Rule 11-3 for attorneys admitted to

28 practice and in good standing in any United States District Court).

ADMINISTRATIVE MOTION OF CONSTIUTIONAL LAW SCHOLARS TO FILE AMICUS CURIAE BRIEF Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63 Filed 03/29/17 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on March 29, 2017, a copy of the foregoing Notice of Motion

4 and Administrative Motion of Constitutional Law Scholars for Leave to File an Amicus

Curiae Brief in Support of Plaintiff’s Motion for Preliminary Injunction, the Amicus 5

Curiae Brief of Constitutional Law Scholars in Support of Plaintiff’s Motion for a 6

Preliminary Injunction, and a Proposed Order were filed pursuant to the Court’s electronic 7

8 filing procedures using CM/ECF.

9

10

/s/ Nevin M. Gewertz

11

Nevin M. Gewertz

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ADMINISTRATIVE MOTION OF CONSTIUTIONAL LAW SCHOLARS TO FILE AMICUS CURIAE BRIEF Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63-1 Filed 03/29/17 Page 1 of 17

1 NEVIN M. GEWERTZ
nevin.gewertz@bartlit-beck.com
2 ABBY M. MOLLEN
abby.mollen@bartlit-beck.com
3 BARTLIT BECK HERMAN PALENCHAR
& SCOTT LLP
4 54 West Hubbard Street, Suite 300
Chicago, IL 60654
5 Telephone: (312) 494-4400
Facsimile: (312) 494-4440
6
Attorneys for AMICI CURIAE
7 CONSTITUTIONAL LAW SCHOLARS

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

10

11

12

13 CITY AND COUNTY OF SAN

FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, President of the United
States of America, UNITED STATES OF
17 AMERICA, JOHN F. KELLY, Secretary of
the United States Department of Homeland
18 Security, JEFFERSON B. SESSIONS,
Attorney General of the United States, DOES
19 1-100.
Defendants.
20

21

Case No. 3:17-cv-00485-WHO

BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW SCHOLARS IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Date: Time: Dep’t: Judge:

April 12, 2017 2:00 pm Courtroom 2 Hon. William H. Orrick

Date Filed: March 29, 2017

Trial Date: Not yet set

22

23

24

25

26

27

28

BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW SCHOLARS Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63-1 Filed 03/29/17 Page 2 of 17

1

TABLE OF CONTENTS

2

3 TABLE OF CONTENTS .....................................................................................................i

4 TABLE OF AUTHORITIES...............................................................................................ii

5 INTEREST OF AMICI CURIAE ......................................................................................... 1

6 INTRODUCTION ............................................................................................................... 1

7 ARGUMENT.......................................................................................................................3

8

I. Our Federalism Protects the States from Becoming Arms of the

Federal Government. ..................................................................................... 3

9

II. The Executive Order Threatens to Upset Our Federalism. ........................... 6

10

A. The Executive Order Threatens to Impose Retroactive

11

Conditions on Federal Funds Already Granted to the States...................6

12

B. The Executive Order Threatens to Coerce State and Local

Governments Into Enforcing Federal Immigration Law ......................... 8

13

CONCLUSION.................................................................................................................. 11

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i
BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW SCHOLARS Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63-1 Filed 03/29/17 Page 3 of 17

1

TABLE OF AUTHORITIES

2

3 Cases

Page(s)

4 Alden v. Maine, 527 U.S. 706 (1999) ................................................................................................. 6
5

6

Bond v. United States, 564 U.S. 211 (2011) ................................................................................................. 6

7 Galarza v. Szalczyk,¸

8

745 F.3d 634 (3d Cir. 2014) ..................................................................................... 7

9

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ................................................................................................. 3

10 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ..................................................................................... 4
11

12

Gregory v. Ashcroft, 501 U.S. 452 (1991) ................................................................................................. 5

13 McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................................................................. 3 14

15

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566 (2012) ............................................................. passim

16 New York v. United States,

17

505 U.S. 144 (1992) ........................................................................................ passim

18

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) ............................................................................................. 4, 6, 8

19 Printz v. United States,

20

521 U.S. 898 (1997) ........................................................................................ passim

21

Reno v. Condon, 528 U.S. 141 (2000) ................................................................................................. 3

22 South Dakota v. Dole,

23

483 U.S. 203 (1987) ................................................................................... 7, 8, 9, 11

24

Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ................................................................................................. 8

25 United States v. Bethlehem Steel Corp., 315 U.S. 289 (1942) ................................................................................................. 9
26

27

United States v. Butler, 297 U.S. 1 (1936) ..................................................................................................... 1

28

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1 Other Authorities

Page(s)

2 8 U.S.C. § 1373........................................................................................................... passim

3 Congressional Budget Office, Federal Grants to State and Local

Governments, (Mar. 2013) ....................................................................................... 9

4

Executive Order No. 13,768, 82 Fed. Reg. 8799 (January 25, 2017) ........................ passim

5

Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,

6

Assistant Att’y Gen., Office of Justice Programs, Department of

Justice, Referral of Allegations of Potential Violations of 8 U.S.C.

7

§ 1373 by Grant Recipients (May 31, 2016) ........................................................ 2, 9

8 Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government Fiscal Year 2017.......................................................................... 9
9 THE FEDERALIST No. 15 ...................................................................................................... 3
10 THE FEDERALIST No. 39 ...................................................................................................... 3
11 U.S. Const. Amend. X ......................................................................................................... 4
12 U.S. Const. Art. I, § 1 .......................................................................................................... 5
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTEREST OF AMICI CURIAE

2

Amici are law professors and scholars in constitutional law, including those who

3 have taught, written, and spoken on the topics of Federalism, the Federal Government’s

4 spending power, and the Tenth Amendment. Amici’s interest in this litigation is to offer

5 their views regarding the principles that inform whether Executive Order No. 13,768, 82

6 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order” or the “Order”) complies with

7 constitutional limits on the Federal Government’s ability to compel State and local

8 Governments to adopt or administer federal law.

9

INTRODUCTION

10

The Constitution prohibits the Federal Government from compelling State and local

11 officials to enforce federal law. Printz v. United States, 521 U.S. 898, 925 (1997). So too

12 does it prohibit the Federal Government from wielding its spending power to achieve the

13 same result by coercion. Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519,

14 132 S. Ct. 2566 (2012); cf. United States v. Butler, 297 U.S. 1, 75 (1936) (spending power

15 cannot be used as an “instrument for total subversion of the governmental powers reserved

16 to the individual states”). Simply put, “[t]he Federal Government may not compel the

17 States to implement, by legislation or executive action, federal regulatory programs.”

18 Printz, 521 U.S. at 925.

19

That cornerstone of Our Federalism is at stake here. Given its broadest reach, the

20 Executive Order would leave certain State and local governments at risk of losing all

21 “Federal grants.” § 9(a). The targeted jurisdictions are those that “willfully refuse to

22 comply with 8 U.S.C. § 1373 (sanctuary jurisdictions),” id., with § 1373 in turn forbidding

23 State and local governments from restricting distribution of information regarding

24 individuals’ citizenship or immigration status to the Federal Government. 8 U.S.C.

25 § 1373(a) (“[A] Federal, State, or local government entity or official may not prohibit, or

26 in any way restrict, any government entity or official from sending to, or receiving from,

27 the Immigration and Naturalization Service information regarding the citizenship or

28 immigration status, lawful or unlawful, of any individual.”). The Executive Order may go

1
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1 further still and target for defunding those jurisdictions that refuse to serve as federal

2 detention facilities, either because the Executive Order instructs that such jurisdictions

3 qualify as “sanctuary jurisdictions,” § 9(b), or because the executive branch considers such

4 jurisdictions to be in violation of § 1373 itself, see Mem. from Michael E. Horowitz,

5 Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs,

6 Department of Justice, Referral of Allegations of Potential Violations of 8 U.S.C. § 1373

7 by Grant Recipients, at p. 8 (May 31, 2016), https://oig.justice.gov/ reports/2016/1607.pdf

8 (“Horowitz Memo”) (stating that § 1373 may prohibit certain State and local policies

9 against honoring detainer requests).

10

If the Executive Order conditions all federal funds on compliance with § 1373 or

11 civil detention requests by the Federal Government, it transgresses basic limits on the

12 power of the Federal Government. First, if applied to federal funds already promised to

13 State and local governments, the Executive Order would impermissibly impose new,

14 previously unstated conditions. That alone is fatal: any condition on federal funds must be

15 unambiguous and not retroactive to be valid. Second, the Executive Order would give

16 State and local jurisdictions the very ultimatum that would be unconstitutional if made by

17 Congress in the first instance—submit, or opt-out and lose all federal grants, grants funded

18 in part by the federal tax obligations of the States’ own citizens. That “choice” is no

19 choice at all. It presents the exact kind of economic coercion that risks turning States into

20 arms of the Federal Government. If the President’s Executive Order requires State and

21 local governments to comply with federal detainer requests—at their own political and

22 economic cost and on pain of losing all federal grants—the assault to Our Federalism is

23 even more apparent. The Federal Government has no authority to conscript State and local

24 police to enforce federal immigration law. It certainly cannot do so by giving States a

25 supposed choice that they cannot refuse.

26

27

28

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1

ARGUMENT

2 I. Our Federalism Protects States from Becoming Arms of the Federal Government.
3 Under our system of Federalism, the States possess their own sovereign power—
4 and their own authority and accountability to the people—and are not mere arms of the
5 Federal Government. That means the Federal Government lacks absolute power to rule
6 upon and through the States. The Framers considered and rejected such a form of
7 government, see Printz, 521 U.S. at 919-920, understanding that “the only proper objects
8 of government” are “the citizens” themselves, THE FEDERALIST No. 15, p. 109 (C. Rossiter
9 ed. 1961). The Framers’ choice ensured that States are not subject to the Federal
10 Government’s command: “[T]he local or municipal authorities form distinct and
11 independent portions of the supremacy, no more subject, within their respective spheres, to
12 the general authority than the general authority is subject to them, within its own sphere.”
13 THE FEDERALIST No. 39, at 245. Thus, “[i]t is an essential attribute of the States’ retained
14 sovereignty that they remain independent and autonomous within their proper sphere of
15 authority.” Printz, 521 U.S. at 928.1
16 The Constitution embodies the Framers’ choice for the States to retain some
17 political independence, or a “residuary and inviolable sovereignty,” distinct from the
18 Federal Government. THE FEDERALIST NO. 39, p. 245. Most fundamentally, as Chief
19 Justice Marshall recognized in McCulloch v. Maryland, the national government (whatever
20 its powers) is “acknowledged by all” to be limited. 17 U.S. (4 Wheat.) 316, 405 (1819).
21 The Constitution grants the Federal Government only enumerated powers, itself a
22 “limitation of powers because ‘the enumeration presupposes something not enumerated.’”
23

24

25

1 Of course, the Federal Government may “subject state governments to generally applicable laws,” meaning “the same legislation applicable to private parties.” New York

26 v. United States, 505 U.S. 144, 160 (1992); see also, e.g., Garcia v. San Antonio Metro.

27

Transit Auth., 469 U.S. 528, 554 (1985). But it may not “require the States in their sovereign capacity to regulate their own citizens.” Reno v. Condon, 528 U.S. 141, 151

28 (2000).

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1 NFIB, 132 S. Ct. at 2577 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824);

2 alteration omitted)). The “police power,” i.e., the “general power of governing,” is

3 residual and “possessed by the States, [] not by the Federal Government.” NFIB, 132 S.

4 Ct. at 2578. The Tenth Amendment makes this explicit: “The powers not delegated to the

5 United States by the Constitution, nor prohibited by it to the States, are reserved to the

6 States respectively, or to the people.” U.S. Const. Amend. X.2

7

Given this structure of Federalism, the Constitution prohibits the Federal

8 Government from commandeering state legislatures or executive officers into service of

9 federal law or the national political agenda. “[T]he Federal Government may not compel

10 the States to implement, by legislation or executive action, federal regulatory programs.”

11 Printz, 521 U.S. at 925. That is no less true where the Constitution grants the Federal

12 Government power to enact and enforce such programs itself. Even then, the Federal

13 Government cannot force the States “to govern according to Congress’s instructions,” New

14 York, 505 U.S. at 162, or, indeed, according to the President’s edict, lest “the two-

15 government system established by the Framers . . . give way to a system that vests power

16 in one central government,” NFIB, 132 S. Ct. at 2602. Nor can the Federal Government

17 achieve the same result by economic coercion. Although it may induce the States to accept

18 federal policy by conditioning the receipt of federal funds on such cooperation, the Federal

19 Government may not “cross[] the line distinguishing encouragement from coercion.” New

20 York, 505 U.S. at 175. Rather, the States must be free to determine whether it is worth it to

21 accept federal policy—and the fiscal and political costs that may come with it—in

22 exchange for federal funds. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,

23 17 (1981) (“[L]egislation enacted pursuant to the spending power is much in the nature of

24 a contract: in return for federal funds, the States agree to comply with federally imposed

25 conditions.”).

26

27

2 Local governments are treated like State Governments for purposes of the Federalism principles expressly guaranteed by the Tenth Amendment. See Printz, 521 U.S. at 931

28 n.15.

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1

Despite these basic precepts of Our Federalism, the Federal Government has at

2 times sought to compel the States to adopt federal law as their own. The Supreme Court

3 has struck those efforts down. For instance, in Printz v. United States, the issue was

4 federal legislation that compelled state law enforcement officers to perform federally

5 mandated background checks on handgun purchasers. 521 U.S. at 902. Even if the law

6 served “very important purposes” and imposed only a “minimal and only temporary

7 burden upon state officers,” the Court struck it down as offending the “very principle of

8 separate state sovereignty.” Id. at 931-33. And in National Federation of Independent

9 Business v. Sebelius, seven Justices agreed that the Medicaid Expansion portion of the

10 Affordable Care Act was unconstitutionally coercive because the threatened loss of

11 funding gave the States “no real option but to acquiesce” to increased state Medicaid

12 obligations. NFIB, 132 S. Ct. at 2605; id. at 2666 (joint op. of Scalia, Kennedy, Thomas,

13 Alito, JJ.) (concluding that the Medicaid Expansion exceeds Congress’s spending power

14 because “the offer of the Medicaid Expansion was one that Congress understood no State

15 could refuse”).3

16

The Federalism structure embodied in the Constitution and upheld in these cases

17 and others is no mere formalism. The Supreme Court has repeatedly described it as crucial

18 protection against “the accumulation of excessive power” in the national government,

19 helping to maintain “a healthy balance of power between the States and the Federal

20 Government” that, in turn, “will reduce the risk of tyranny and abuse from either front.”

21 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991); see also Printz, 521 U.S. at 921

22

23 3 Of course, these cases address acts of Congress (not executive action) because Congress
24 has “[a]ll legislative powers herein granted” by the Constitution, including the authority

25

under the spending clause to attach conditions to federal funds, U.S. Const. Art. I, § 1; id. § 8 cl.1., as explained in the separate amicus brief addressed to the Separation of Powers

26 issues presented by the Executive Order. But these cases nonetheless control here, as they

27

address the limits of the Federal Government’s authority as reflected in the Tenth Amendment and the enumeration of powers delegated to the Federal Government—limits

28 that apply no matter what branch of the Federal Government seeks to act beyond them.

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1 (explaining that federalism is “one of the Constitution’s structural protections of liberty”).

2 The balance of power between the States and the Federal Government “secures to citizens”

3 the freedoms that “derive from the diffusion of sovereign power.” New York v. United

4 States, 505 U.S. 144, 181 (1992); Bond v. United States, 564 U.S. 211, 220–21 (2011)

5 (“‘Freedom is enhanced by the creation of two governments, not one.’” (quoting Alden v.

6 Maine, 527 U.S. 706, 758 (1999))). “By denying any one government complete

7 jurisdiction over all the concerns of public life, federalism protects the liberty of the

8 individual from arbitrary power.” Bond, 564 U.S. at 222.

9 II. The Executive Order Threatens to Upset Our Federalism.

10

The Executive Order reflects the President’s judgment that so-called sanctuary

11 jurisdictions “have caused immeasurable harm to the American people and to the very

12 fabric of our Republic.” § 1. Depending on its reach (and the reach of § 1373, which the

13 Order purports to enforce), it is the Executive Order that poses a threat to our Republic and

14 the dual sovereignty that the Framers sought to enshrine in the Constitution.4

15

A. The Executive Order Threatens to Impose Retroactive Conditions on

16

Federal Funds Already Granted to the States.

17

“Th[e] practice of attaching conditions to federal funds greatly increases federal

18 power.” NFIB, 132 S. Ct. at 2659. For that reason, the Supreme Court has set absolute

19 limits on the practice to protect the States—and by extension individual liberties—from

20 undue expansion of federal power. See id. Among other limits, any condition on federal

21 funding must (i) be unambiguous and (ii) apply only prospectively and not retroactively.

22 See, e.g., Pennhurst, 451 U.S. at 17 (“[I]f Congress intends to impose a condition on the

23 grant of federal moneys, it must do so unambiguously); id. at 25 (“Though Congress’

24 power to legislate under the spending power is broad, it does not include surprising

25 participating States with post acceptance or ‘retroactive’ conditions.”). These limits

26

27

4 Amici offer no view of the proper interpretation of the reach of the Executive Order or 8 U.S.C. § 1373, either in terms of the funds at stake or the particular conduct required to

28 avoid classification as a “sanctuary jurisdiction.”

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1 protect States’ ability to enter federal spending programs “knowingly, cognizant of the

2 consequences of their participation.” South Dakota v. Dole, 483 U.S. 203, 207 (1987)

3 (internal quotation marks omitted).

4

Amici know of no statute that unambiguously links federal funds to compliance

5 with § 1373.5 Yet, the Executive Order requires the Attorney General and the Secretary of

6 Homeland Security to “ensure” that so-called sanctuary jurisdictions that violate § 1373

7 are ineligible to “receive Federal grants”:

8

The Attorney General and the Secretary, in their discretion and to the

extent consistent with law, shall ensure that jurisdictions that willfully

9

refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

eligible to receive Federal grants, except as deemed necessary for law

10

enforcement purposes by the Attorney General or the Secretary.

11 § 9(a). Likewise, while the Executive Order indicates that jurisdictions that fail to honor

12 civil detainer requests may also qualify as sanctuary jurisdictions at risk of defunding,

13 § 9(b), Amici know of no statute that unambiguously requires State and local governments

14 to comply with such requests in exchange for federal funds. Section 1373 itself certainly

15 does not establish any such condition, as it addresses the information-sharing obligations

16 of State and local governments (not any detention obligations) and does not purport to

17 condition any federal funds on compliance with those obligations.6

18

If the Executive Order does as it says—that is, if it puts all federal funds at risk,

19 including those already accepted by State and local governments, whether for a

20 jurisdiction’s noncompliance with § 1373 or its unwillingness to act as a federal detention

21

22 5 The State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial Justice Assistance Grant Program (“JAG”) grants have been interpreted by the executive
23 branch to require compliance with § 1373 based on the statutory requirement that the jurisdiction comply with “all applicable federal laws.” But with neither grant did Congress
24 itself explicitly require compliance with § 1373.

25 6 Indeed, prior to the Executive Order, the Federal Government’s position was that agreement to detain individuals upon the Federal Government’s request was “voluntary.”
26 D.I. 1 (Santa Clara Complaint, Case No. 3:17-cv-00574) ¶ 54 (stating that ICE responded in a public exchange of letters that civil detainers are “requests”); see also Galarza v.
27 Szalczyk¸745 F.3d 634 (3d Cir. 2014) (holding that to require States and localities to detain prisoners pursuant to federal immigration detainer requests would run afoul of the anti-
28 commandeering doctrine).

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1 facility—it imposes new, after-the-fact conditions on federal funds that Congress chose not

2 to impose in the first instance. Aside from obvious Separation of Powers problems, see

3 supra at 5 n.3, that would transgress the basic rule that the spending power “does not

4 include surprising participating States with post acceptance or ‘retroactive’ conditions” on

5 funds already appropriated to them. Pennhurst, 451 U.S. at 25. The Federal Government

6 cannot force new conditions down the throats of State and local governments. And it

7 certainly cannot do so in an effort to brandish a new and more intimidating “weapon” for

8 pressuring State and local governments to assist in the enforcement of federal immigration

9 law. See D.I. 28-5 (Eisenberg Decl., Case No. 3:17-cv-00485, Ex. E (Tr. of Feb. 5, 2017

10 interview of President Donald J. Trump)) (characterizing defunding as a “weapon” that can

11 be wielded to deprive sanctuary jurisdictions of “the money they need to properly operate

12 as a city or a state”).

13

B. The Executive Order Threatens to Coerce State and Local Governments

Into Enforcing Federal Immigration Law.

14

The Executive Order also threatens to breach the line that “distinguish[es]

15

encouragement from coercion.” New York, 505 U.S. at 175. If the Executive Order puts

16

all federal funds at stake, it gives States no choice but to comply. The specter of such

17

absolute defunding is a far cry from the modest threat of foregone highway funds in South

18

Dakota v. Dole. 483 U.S. at 205. There, the Supreme Court held that Congress’s

19

conditioning of less than one percent of a State’s budget on its adoption of the federal

20

minimum drinking age amounted at most to “mild encouragement” for the State to adopt

21

federal policy as its own and was not “so coercive as to pass the point at which ‘pressure

22

turns into compulsion.’” Id. at 211 (quoting Steward Machine Co. v. Davis, 301 U.S. 548,

23

590 (1937)); see NFIB, 132 S. Ct. at 2604 (“It is easy to see how the Dole Court could

24

conclude that the threatened loss of less than half of one percent of South Dakota's budget

25

left that State with a prerogative to reject Congress’s desired policy, not merely in theory

26

but in fact.” (internal quotation marks omitted)). Indeed, if the Executive Order threatens

27

all federal funds, then even the Medicaid Expansion piece of the Affordable Care Act at

28

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1 issue in NFIB seems modest by comparison.7 That threatened the States with loss of all

2 Medicaid funds—a subset of all federal funds—unless the States took on expanded

3 Medicaid obligations. Seven Justices agreed in NFIB that the Medicaid expansion law

4 amounted to “economic dragooning that leaves the States with no real option but to

5 acquiesce.” 132 S. Ct. at 2605; id. at 2666 (joint op. of Scalia, Kennedy, Thomas, Alito,

6 JJ.). A condition imposed on all federal funds would be economically coercive for the

7 same reason—the offer is one that no State or local government could refuse.8

8

The pernicious consequences of such coercion are perhaps most apparent if

9 classification as a “sanctuary jurisdiction”—and thus potential defunding—can be

10 triggered by a State or local government’s refusal to detain individuals upon the Federal

11 Government’s request. Cf. § 9(b) (seemingly equating a “sanctuary jurisdiction” as one

12 that fails to honor detainer requests); Horowitz Memo at 8 (suggesting that certain policies

13 against honoring detainer requests may operate to “restrict cooperation with ICE in all

14 respects” and thus “be inconsistent with and prohibited by Section 1373”). Jurisdictions

15 like the County of Santa Clara and the City of San Francisco have determined that they

16 cannot perform their own governmental functions—such as protecting public safety and

17 welfare—and also permit their law enforcement officers to serve as de facto federal

18

19 7 By comparison, different economic analyses estimate that 25 percent to 31.3 percent of
20 all state and local spending comes from federal grants. See, e.g., Congressional Budget Office, Federal Grants to State and Local Governments, p. 1 (Mar. 2013), available at,
21 https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/03-0513federalgrantsonecol.pdf; Office of Management and Budget, Analytical Perspectives,
22 Budget of the U.S. Government Fiscal Year 2017, p. 270, available at https://obama whitehouse.archives.gov/sites/default/files/omb/budget/fy2017/assets/spec.pdf.
23 8 By way of example, the County of Santa Clara previously participated in both the
24 SCAAP and JAG programs. See D.I. 26 (Case No. 3:17-cv-00574) at 6 n.5. But after the executive branch issued guidance linking the two programs to compliance with § 1373, the
25 County opted-out, deciding not to accept SCAAP and JAG funds to “retain its full discretion in this policy area.” Id. Assuming the executive branch’s guidance was
26 permissible (a question Amici take no position on), the kind of choice that Santa Clara made is exactly what Dole requires at a minimum and what the Executive Order threatens
27 to destroy depending on the breadth of the funds it puts at stake. See United States v. Bethlehem Steel Corp., 315 U.S. 289, 362-27 (1942) (Frankfurter, J., dissenting) (“[T]he
28 courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic necessities of the other.”).
9
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1 immigration agents. See D.I. 1 (Santa Clara Compl., Case No. 3:17-cv-00574) ¶ 59, D.I.

2 20 (San Fran. Amd. Compl., Case No. 3:17-cv-00485) ¶ 3 (alleging that complying with

3 voluntary detainer requests would compromise local law enforcement by undermining trust

4 between officers and local communities). The President can no more countermand that

5 determination and require state officers to detain individuals for the Federal Government

6 than Congress could force state law enforcement officers to perform background checks on

7 would-be handgun purchasers in Printz. There, as here, “[t]he power of the Federal

8 Government would be augmented immeasurably if it were able to impress into its

9 service—and at no cost to itself—the police officers of the 50 States.” 521 U.S. at 922.

10 And there, as here, the augmentation of power to the Federal Government not only upsets

11 the balance between federal and state governments, but also threatens to blur the very lines

12 between the two, undermining the accountability of both. As Justice Scalia explained in

13 Printz: 14 15 16 17

By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.

18 Id. at 830; see also NFIB, 132 S. Ct. at 2602–03. Indeed, the intrusion posed by the

19 Executive Order is likely worse than in Printz: the financial burden is greater and law

20 enforcement officers may have to detain individuals for the Federal Government, not just

21 stand between a potential gun purchaser and immediate possession of his gun.

22

The Federal Government cannot foist the political and financial costs of its

23 immigration policies onto State and local governments, whether by direct commandeering

24 or by economic coercion. Here, the Executive Order threatens to coerce subnational

25 governments into service as federal immigration agencies, as the apparent costs of any

26 other option are too catastrophic to say no. The potential result would be disastrous to Our

27 Federalism: “the two-government system established by the Framers would give way to a

28 system that vests power in one central government, and individual liberty would suffer.”

10
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1 NFIB, 132 S. Ct. at 2602. Indeed, one need not even agree with every aspect of Printz or

2 other “New Federalism” decisions of the Supreme Court to understand that their basic

3 meaning is to rein in the kind of incursion by the Federal Government on States’ political

4 independence that would exist if the Executive Order threatens absolute defunding of State

5 and local governments that refuse to become agents of federal immigration enforcement.

6

Such coercion is alone fatal. But if the Executive Order reaches all “Federal

7 grants,” it is illegitimate for another reason too. Conditions on federal funds are legitimate

8 only if they “relate[] to the federal interest in particular national projects or programs.”

9 NFIB, 132 S. Ct. at 2659; Dole, 483 U.S. at 213 (O’Connor, J., dissenting) (“We have

10 repeatedly said that Congress may condition grants under the spending power only in ways

11 reasonably related to the purpose of the federal program.”). Not all “Federal grants” that

12 State and local governments accept from the Federal Government relate to federal

13 immigration policy, much less the information-sharing requirements regarding individuals’

14 citizenship or immigration status of § 1373. The federal highway funds at issue in Dole

15 and the Medicaid funds at issue in NFIB certainly did not. The same reach that would

16 make the Executive Order coercive would also make it overbroad in relation to the federal

17 interest at stake. Either flaw would be fatal.

18

CONCLUSION

19

The Framers chose to diffuse sovereign authority across Federal and State

20 governments “precisely so that we may resist the temptation to concentrate power in one

21 location as an expedient solution to the crisis of the day.” New York, 505 U.S. at 187.

22 Illegal immigration may, in the President’s view, be today’s crisis. But any political

23 solution to that problem cannot violate the autonomy and independence of State and local

24 governments in their spheres of authority.

25

26

27

28

11
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1 March 29, 2017 2

BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP

3

4

By: /s/ Nevin M. Gewertz

Nevin M. Gewertz

5

Abby M. Mollen

6

Attorneys for Amici Curiae

7

Constitutional Law Scholars

8

9

10 11 Amici Curiae Constitutional Law Scholars 12 (Institutional Affiliation Listed for Identification Purposes Only)

13 14 Raquel Aldana, McGeorge School of Law, University of the Pacific 15 Michelle Wilde Anderson, Stanford Law School 16 Hadar Aviram, University of California Hastings College of the Law 17 W. David Ball, Santa Clara School of Law 18 Lenni B. Benson, New York Law School 19 Gabriel J. Chin, University of California, Davis School of Law 20 Ingrid V. Eagly, University of California Los Angeles School of Law 21 William H.D. Fernholz, University of California Berkeley School of Law 22 Katherine J. Florey, University of California Davis School of Law 23 Gerald E. Frug, Harvard Law School 24 Bill Ong Hing, University of San Francisco School of Law 25 Sanford V. Levinson, University of Texas School of Law 26 Alison L. LaCroix, University of Chicago Law School 27 Karl Manheim, Loyola Law School, Los Angeles 28 Maya Manian, University of San Francisco School of Law

12
BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW SCHOLARS Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63-1 Filed 03/29/17 Page 17 of 17
1 Hiroshi Motomura, University of California Los Angeles School of Law 2 James Gray Pope, Rutgers Law School 3 Darien Shanske, University of California Davis School of Law 4 Fred Smith, Jr., University of California Berkeley School of Law 5 Ilya Somin, George Mason University, Antonin Scalia Law School 6 Elissa Steglich, University of Texas School of Law 7 Rose Cuison-Villazor, University of California Davis School of Law 8 Michael Vitiello, McGeorge School of Law, University of the Pacific 9 Alexander “Sasha” Volokh, Emory University School of Law 10 Keith Whittington, Princeton University 11 Ernest Young, Duke University School of Law 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
13 BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW SCHOLARS
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 63-2 Filed 03/29/17 Page 1 of 1

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

2

SAN FRANCISCO DIVISION

3 CITY AND COUNTY OF SAN 4 FRANCISCO,

5

Plaintiff, v.

Case No. 3:17-cv-00485-WHO [PROPOSED] ORDER

6 DONALD J. TRUMP, President of the

7

United States of America, UNITED STATES OF AMERICA, JOHN F.

8

KELLY, Secretary of the United States Department of Homeland Security,

9

JEFFERSON B. SESSIONS, Attorney General of the United States, DOES 1-100.

Date: Time: Dep’t: Judge:

April 12, 2017 2:00 pm Courtroom 2 Hon. William H. Orrick

Date Filed: March 29, 2017

10

Defendants.

Trial Date: Not yet set

11

12

Good cause appearing, the Motion of Amici Curiae Constitutional Law Scholars

13 Raquel Aldana, Michelle Wilde Anderson, Hadar Aviram, W. David Ball, Lenni B.

14 Benson, Gabriel J. Chin, Ingrid V. Eagly, William H.D. Fernholz, Katherine J. Florey,

15 Gerald E. Frug, Bill Ong Hing, Alison L. LaCroix, Sanford V. Levinson, Karl Manheim,

16 Maya Manian, Hiroshi Motomura, James Gray Pope, Darien Shanske, Fred Smith, Jr., Ilya

17 Somin, Elissa Steglich, Rose Cuison-Villazor, Michael Vitiello, Alexander “Sasha”

18 Volokh, Keith Whittington, and Ernest Young for leave to file an amicus brief in support

19 of Plaintiff’s Motion for Preliminary Injunction is hereby GRANTED.

20

IT IS SO ORDERED.

21

22 March __, 2017 23 24 25 26

__________________________________________
Hon. William H. Orrick United States Chief District Judge
Northern District of California

27

28

[PROPOSED] ORDER Case No. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 64 Filed 03/29/17 Page 1 of 3

1 AMY BISSON HOLLOWAY, State Bar. No. 163731 General Counsel
2 EDMUNDO R. AGUILAR, State Bar No. 136142 Assistant General Counsel
3 TODD M. SMITH, State Bar No. 170798 Assistant General Counsel
4 THOMAS H. PROUTY, State Bar No. 238950 Deputy General Counsel
5 California Department of Education 1430 N Street, Suite 5319
6 Sacramento, California 95814 Telephone: 916 319-0860
7 Facsimile: 916 319-0155 tprouty@cde.ca.gov
8 Attorneys for the State Superintendent of Public Instruction, Tom Torlakson

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 CITY AND COUNTY OF SAN FRANCISCO,

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, et al.,

18

Defendants.

19

20

21

) Case No. 3:17-CV-00485-WHO ) ) THE STATE SUPERINTENDENT OF ) PUBLIC INSTRUCTION’S ) ADMINISTRATIVE MOTION FOR ) LEAVE TO FILE BRIEF AS AMICUS ) CURIAE IN SUPPORT OF PLAINTIFF’S ) MOTION FOR PRELIMINARY ) INJUNCTION ) ) Date: April 14, 2017 ) Time: 2:00 p.m. ) Judge: Honorable William H. Orrick ) Ctrm: Courtroom 2

22

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Case No.: 3:17-cv-00485-WHO

Administrative Motion for Leave to File Brief as Amicus Curiae

Case 3:17-cv-00485-WHO Document 64 Filed 03/29/17 Page 2 of 3

1

Pursuant to this Court’s Order Regarding Amicus Briefing (Dkt. No. 31), California State

2 Superintendent of Public Instruction, Tom Torlakson (“Torlakson”), respectfully moves this Court for

3 leave to file the accompanying amicus brief in support of Plaintiff City and County of San Francisco’s

4 Motion for Preliminary Injunction.

5

Recognizing that education is “essential to the preservation of the rights and liberties of the

6 people,” California’s Constitution provides for the office of Superintendent of Public Instruction

7 (“SPI”). Cal. Const. art. IX, §§1-2. In November 2014, Torlakson was reelected on a nonpartisan

8 statewide ballot to his second four-year term as SPI. As SPI, Torlakson is chief executive of

9 California’s Department of Education (“CDE”), as well as the secretary and executive officer of the

10 State Board of Education, CDE’s policy-making body. Educ. Code §§ 33300-33303. Among the many

11 other more specific duties assigned to him by law, the SPI is required to execute the state’s education

12 policies (Educ. Code § 33111), superintend the state’s public schools (Educ. Code § 33112(a)), and

13 prescribe regulations governing the making of contracts or arrangements with federal agencies for the

14 state’s public schools to receive federal funds, services or equipment (Educ. Code § 33113-33114).

15 Among other things, Torlakson is also a former high school coach and science teacher.

16

As SPI, Torlakson must, and does, have a strong interest in the administration of the state’s

17 public schools, and the education, safety and welfare of their students, as well as California’s eligibility

18 for and receipt of education-related federal funding. Each of these things is hindered by the Executive

19 Order at issue in this action and Plaintiff’s pending motion for preliminary injunction.

20

The accompanying amicus brief should be considered because it: (a) provides Torlakson’s

21 unique perspective as the state’s elected SPI regarding the Executive Order’s impact in the discrete, but

22 fundamentally important, area of public education; (b) strives to be concise (only four pages) and not

23 repetitious of the parties’ arguments; and (c) all while discussing matters relevant to the pending

24 controversy, including how the Executive Order undermines school districts’ efforts to create the safe

25 and stable environment necessary for optimum pupil achievement, and unconstitutionally coerces

26 school districts to abandon desirable policies or risk losing vital federal funding for running afoul of

27 vague commands. Loss of such funding would have an enormous detrimental effect on California’s

28

Case No.: 3:17-cv-00485-WHO

1

Administrative Motion for Leave to

File Brief As Amicus Curiae

Case 3:17-cv-00485-WHO Document 64 Filed 03/29/17 Page 3 of 3

1 students and public school system – California receives more than $8 billion for K-12 education each

2 year from the federal government.

3

For these reasons, the California State Superintendent of Public Instruction, Tom Torlakson,

4 respectfully requests that the Court grant this administrative motion, deem the accompanying amicus

5 brief filed, and consider the brief in connection with Plaintiff’s pending motion.

6 Dated: March 29, 2017

Respectfully submitted,

7

8

AMY BISSON HOLLOWAY

General Counsel

9

EDMUNDO R. AGUILAR

Assistant General Counsel

10

TODD M. SMITH

Assistant General Counsel

11

12

By: /s/ Thomas H. Prouty_

THOMAS H. PROUTY

13

Deputy General Counsel

Attorneys for the State Superintendent of

14

Public Instruction

15

16

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18

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21

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25

26

27

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Case No.: 3:17-cv-00485-WHO

2

Administrative Motion for Leave to

File Brief As Amicus Curiae

Case 3:17-cv-00485-WHO Document 64-1 Filed 03/29/17 Page 1 of 5

1 AMY BISSON HOLLOWAY, State Bar. No. 163731 General Counsel
2 EDMUNDO R. AGUILAR, State Bar No. 136142 Assistant General Counsel
3 TODD M. SMITH, State Bar No. 170798 Assistant General Counsel
4 THOMAS H. PROUTY, State Bar No. 238950 Deputy General Counsel
5 California Department of Education 1430 N Street, Room 5319
6 Sacramento, California 95814 Telephone: 916-319-0860
7 Facsimile: 916-319-0155 E-mail: tprouty@cde.ca.gov
8 Attorneys for the State Superintendent of Public Instruction, Tom Torlakson

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 CITY AND COUNTY OF SAN FRANCISCO,

15

Plaintiff,

16 v.
17 DONALD J. TRUMP, et al.
18
Defendants. 19

20

21

) Case No. 3:17-CV-00485-WHO

)

) ) ) ) ) )

THE STATE SUPERINTENDENT OF PUBLIC INSTRUCTION’S BRIEF AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

) ) Date: April 14, 2017

) Time: 2:00 p.m.

) Judge: Honorable William H. Orrick

) Ctrm: Courtroom 2

)

)

22

23

24

25

26

27

28

Case No. 3:17-CV-00485-WHO

Superintendent of Public Instruction’s Amicus Brief ISO Plaintiff’s Motion for Prelim. Injun.

Case 3:17-cv-00485-WHO Document 64-1 Filed 03/29/17 Page 2 of 5

1

I. INTRODUCTION

2

California State Superintendent of Public Instruction, Tom Torlakson (“Torlakson”),

3 respectfully submits this amicus curiae brief in support of Plaintiff City and County of San Francisco’s

4 Motion for a Preliminary Injunction (Dkt. 21) seeking, among other things, to enjoin nationwide

5 enforcement of Section 9(a) of Executive Order 13768, entitled “Enhancing Public Safety in the

6 Interior of the United States” (the “Executive Order”).

7

As Superintendent of Public Instruction (“SPI”), a constitutionally-created and publicly-elected

8 office, Torlakson serves as the chief executive of California’s Department of Education (“CDE”), as

9 well as the secretary and executive officer of the State Board of Education, CDE’s policy-making

10 body. Educ. Code §§ 33300-33303. Among other things, the SPI is required to execute the state’s

11 education policies, superintend the state’s public schools, and prescribe regulations governing the

12 making of contracts with federal agencies for the state’s public schools to receive federal funds,

13 services or equipment. Educ. Code § 33111-33114. Naturally, as SPI, Torlakson has a strong interest

14 in the administration of the state’s more than 9000 public schools; the education, safety and welfare of

15 the more than 6 million K-12 public school students; and California’s eligibility for the more than $8

16 billion in education-related federal funding that California receives annually. Unfortunately, the

17 Executive Order jeopardizes each of these things.

18

As they must, and should, California schools provide the fundamental right of an education to

19 all children, regardless of immigration status. Creating an environment where all students feel safe

20 and secure, and where parents feel secure to participate and engage in their child’s education, is critical

21 to individual and collective pupil achievement. Even before the Executive Order was issued, many

22 public school districts adopted policies to assure families and students that their schools were safe and

23 secure places for learning and engagement. This was largely in response to reports of increased

24 uncertainty, anxiety and fear, and of bullying on the basis of ethnicity, race and country of origin. The

25 Executive Order now seeks to force state and local educational agencies to eliminate such productive

26 policies or risk losing vitally important federal funding, thereby undermining public schools’ ability to

27 protect, foster and educate children.

28 ///

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Case 3:17-cv-00485-WHO Document 64-1 Filed 03/29/17 Page 3 of 5

1

The Executive Order, however, is unconstitutional and should be enjoined. The Executive

2 Order impermissibly coerces state and local jurisdictions, including schools, school districts, and

3 county offices of education, to take an active role in enforcing federal immigration laws. In addition,

4 the Executive Order contains no clear definition of “sanctuary jurisdiction” yet threatens any state or

5 local jurisdiction that the Secretary of Homeland Security declares to be a “sanctuary jurisdiction” with

6 the withholding of much needed federal funds.

7

II. ARGUMENT

8

A. The Executive Order Undermines Schools’ Efforts to Create Environments

Necessary for Effective Education

9

10

California serves more than 6 million students in over 9,000 public schools. Those schools are

11 dependent on federal funds – California receives more than $8 billion annually for K-12 education

12 from the federal government, which is then largely redirected to local districts and schools to support a

13 variety of services, from instructional support programs for at-risk students, to providing nutrition to

14 low-income students.

15

Education has been deemed a fundamental right under the California Constitution. Cal. Const.,

16 art. IX, §1; Butt v. State of California, 4 Cal 4th 668, 679 (1992). Education is so fundamental that the

17 United States Supreme Court has held that all children, regardless of immigration status, are “entitled

18 to equal access to public education.” Plyler v. Doe, 457 U.S. 202, 219-30 (1982).

19

California education officials recognize that a key part of optimizing student success is creating

20 a safe and secure place for students to focus on learning and for parents to feel comfortable engaging

21 in their child’s education. The Executive Order, particularly Section 9, undermines districts’ and

22 schools’ ability to do that by threatening to withhold funds from jurisdictions that have identified

23 themselves as safe havens for all students. And in doing so, in a very real sense, the Executive Order

24 threatens the very access to education guaranteed to all children by Plyler.

25 ///

26 ///

27 ///

28 ///

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2 Superintendent of Public Instruction’s Amicus Brief ISO Plaintiff’s Motion for Prelim. Injun.

Case 3:17-cv-00485-WHO Document 64-1 Filed 03/29/17 Page 4 of 5

1

B. The Executive Order Seeks to Compel Schools, School Districts and County

Offices of Education to Participate in Immigration Enforcement

2

3

It is an essential tenet of the Tenth Amendment that states and local governments cannot be

4 commandeered to act as an arm of the federal government. Meaning, the United States government

5 cannot direct state and local jurisdictions to enforce federal law. Printz v. United States, 521 U.S. 898,

6 931 n.17 (1997); New York v. U.S., 505 U.S. 144, 160 (1992). Though the Executive Order pays lip

7 service to the Federal-State partnership in the area of immigration, it in fact ignores a fundamental

8 aspect of the federal statutes which rely on voluntary agreements with state and local officials for

9 enforcement of federal immigration laws. 8 U.S.C. 1357(g). In the case of jurisdictions which the

10 Attorney General or Secretary may deem to be “sanctuary jurisdictions” based upon unknown criteria,

11 the Executive Order seeks to compel local jurisdictions to abandon legitimate policies aimed at

12 improving the quality of and access to education for all. The United States government imposes a

13 coercive choice on districts by directing them to do what is asked, or risk losing all federal funds. The

14 coercive nature of the Executive Order is specifically highlighted in section 9(a) which states that “the

15 Attorney General shall take appropriate action against any entity that violates 8 U.S.C. 1373, or which

16 has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal Law.”

17 Executive Order, at 8801.

18

C. The Executive Order Lacks Clear Definitions and Standards

19

A federal law is unconstitutionally vague if it (1) “fails to provide a person of ordinary

20 intelligence fair notice of what is prohibited,” or (2) “is so standardless that it authorizes or encourages

21 seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). The

22 Executive Order fails both tests. It permits the Attorney General and the Secretary of Homeland

23 Security to withhold federal funds from any district that they deem to be a “sanctuary jurisdiction” or

24 that they declare is preventing or hindering the enforcement of federal law. However, the Executive

25 Order lacks a clear definition of “sanctuary jurisdiction” or any standards to put a district on fair notice

26 as to what conduct is allowed or prohibited. The Attorney General and Secretary of Homeland

27 Security essentially have unfettered discretion to determine which jurisdictions fall within the Order’s

28 ambit, whether they have “willfully refuse[d] to comply” with Section 1373, and whether “appropriate

Case No. 3:17-CV-00485-WHO

3 Superintendent of Public Instruction’s Amicus Brief ISO Plaintiff’s Motion for Prelim. Injun.

Case 3:17-cv-00485-WHO Document 64-1 Filed 03/29/17 Page 5 of 5

1 enforcement action” is required. Executive Order at §9(a). Consequently, the Executive Order is

2 unconstitutionally vague.

3

D. Maintaining the Status Quo Will Avoid Irreparable Harm to California’s

Students and Public School System and Serve the Public Interest

4

5

The status quo is that local jurisdictions do not have an obligation to enforce federal

6 immigration rules. Further, the United States government has a long standing policy in place that

7 identifies schools as “sensitive locations” where undocumented aliens will ordinarily not be swept up

8 by Immigration and Customs Enforcement “(ICE”). https://www.ice.gov/doclib/ero-

9 outreach/pdf/10029.2-policy.pdf. ICE has confirmed that this policy is still in place.

10 https://www.ice.gov/ero/enforcement/sensitive-loc (webpage last visited March 29, 2017).

11

Altering the status quo would subject state and local educational agencies to significant risks of

12 irreparable harm. As noted, California receives more than $8 billion/year in federal funds for K-12

13 education, which is necessary to provide critical educational programs. The Executive Order places

14 schools, schools districts and county offices of education, who have merely identified themselves as

15 safe havens for all students, in the precarious position of losing necessary federal funds without

16 warning, notice or clear guidance about what is meant by the order, while they also seek to comply

17 with the constitutional requirements set forth in Plyer.

18

III. CONCLUSION

19

For the foregoing reasons, California State Superintendent of Public Instruction, Tom

20 Torlakson, respectfully requests that this Court grant Plaintiff’s motion for preliminary injunction.

21 Dated: March 29, 2017

Respectfully submitted,

22

AMY BISSON HOLLOWAY

General Counsel

23

EDMUNDO R. AGUILAR

Assistant General Counsel

24

TODD M. SMITH

Assistant General Counsel

25

26

By: /s/ Thomas H. Prouty

THOMAS H. PROUTY

27

Deputy General Counsel

Attorneys for the State Superintendent of

28

Public Instruction

Case No. 3:17-CV-00485-WHO

4 Superintendent of Public Instruction’s Amicus Brief ISO Plaintiff’s Motion for Prelim. Injun.

Case 3:17-cv-00485-WHO Document 64-2 Filed 03/29/17 Page 1 of 2

1 AMY BISSON HOLLOWAY, State Bar. No. 163731 General Counsel
2 EDMUNDO R. AGUILAR, State Bar No. 136142 Assistant General Counsel
3 TODD M. SMITH, State Bar No. 170798 Assistant General Counsel
4 THOMAS H. PROUTY, State Bar No. 238950 Deputy General Counsel
5 California Department of Education 1430 N Street, Suite 5319
6 Sacramento, California 95814 Telephone: 916 319-0860
7 Facsimile: 916 319-0155 tprouty@cde.ca.gov
8 Attorneys for the State Superintendent of Public Instruction, Tom Torlakson

9

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 CITY AND COUNTY OF SAN FRANCISCO,

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, et al.,

18

Defendants.

19

20

21

) Case No. 3:17-CV-00485-WHO ) ) [PROPOSED] ORDER GRANTING THE ) STATE SUPERINTENDENT OF PUBLIC ) INSTRUCTION’S ADMINISTRATIVE ) MOTION FOR LEAVE TO FILE BRIEF ) AS AMICUS CURIAE IN SUPPORT OF ) PLAINTIFF’S MOTION FOR ) PRELIMINARY INJUNCTION ) ) Date: April 14, 2017 ) Time: 2:00 p.m. ) Judge: Honorable William H. Orrick ) Crtm: Courtroom 2

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Case No.: 3:17-cv-00485-WHO

[Proposed] Order Granting Administrative Motion to File Amicus Curiae Brief

Case 3:17-cv-00485-WHO Document 64-2 Filed 03/29/17 Page 2 of 2

1

Upon consideration of the Administrative Motion for Leave to File an Amicus Brief (“Motion”)

2 filed by California State Superintendent of Public Instruction, Tom Torlakson (“Torlakson”), and for

3 good cause shown, IT IS HEREBY ORDERED that the Motion is granted, and Torlakson’s proposed

4 amicus brief that accompanied the Motion is deemed filed.

5

6 Dated: ________________, 2017 7 8

________________________________________ HON. WILLIAM H. ORRICK United States District Judge

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Case No.: 3:17-cv-00485-WHO

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[Proposed] Order Granting Administrative

Motion to File Amicus Curiae Brief

 
 Case 3:17-cv-00485-WHO Document 66 Filed 03/29/17 Page 1 of 4

1 XAVIER BECERRA Attorney General of California
2 ANGELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 LISA C. EHRLICH Deputy Attorney General
5 State Bar No. 270842 1515 Clay Street, 20th Floor
6 P.O. Box 70550 Oakland, CA 94612-0550
7 Telephone: (510) 879-0173 Fax: (510) 622-2270
8 E-mail: Lisa.Ehrlich@doj.ca.gov Attorneys for State of California
9

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13

14

15 CITY AND COUNTY OF SAN FRANCISCO, Case No. 3:17-cv-00485-WHO

16

Plaintiff, STATE OF CALIFORNIA’S

ADMINISTRATIVE MOTION FOR

17

v.

LEAVE TO FILE AN AMICUS CURIAE

BRIEF IN SUPPORT OF PLAINTIFF’S

18

MOTION FOR PRELIMINARY

DONALD J. TRUMP, President of the United INJUNCTION

19 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of the United

Date:

April 14, 2017

20 States Department of Homeland Security,

Time:

2:00 p.m.

DANA J. BOENTE, Acting Attorney General Courtroom: 2

21 of the United States, DOES 1-100,

Judge:

Honorable William H. Orrick

22

Defendants. Trial Date: None Set

23

Action Filed: January 31, 2017, 2017

24

The State of California respectfully moves, pursuant to the Court’s inherent authority and

25 its order of March 21, 2017, for leave to file a brief as amicus curiae supporting the City and
26 County of San Francisco (“San Francisco”) in its case challenging President Trump’s
27 unconstitutional Executive Order regarding “sanctuary jurisdictions.” See Exec. Order 13768, 82
28
1
State of California’s Administrative Motion for Leave to File an Amicus Curiae Brief Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 66 Filed 03/29/17 Page 2 of 4

1 Fed. Reg. 8799 (Jan. 25, 2017).

2

IDENTITY OF AMICUS CURIAE

3 The California Attorney General is the State’s chief law officer. Plaintiff City and County

4 of San Francisco is a political subdivision of the State of California.
5

6

MOVANT’S INTEREST

7

The State of California has a significant interest in maintaining its sovereign authority to

8 determine the discretion state and local law enforcement agencies should have regarding the level

9 of engagement with federal immigration enforcement that best serves their communities. Both

10 California and many law enforcement agencies throughout the State and the country have long
11 concluded that public safety is facilitated when all residents, regardless of immigration status, are
12 encouraged to report crimes and participate in policing efforts without fear of immigration
13
14 consequences.

15

California has enacted legislation – including the TRUST and TRUTH Acts – that reflect

16 the Legislature’s judgment about the correct balance between the use of state and local resources

17 to assist with federal immigration efforts and the State’s local interest in preserving community

18 trust and protecting public safety. The Attorney General of California, as the State’s chief law
19 officer, has a duty to administer the State’s laws, and has an interest in seeing that these State
20 laws are properly interpreted and enforced, and not undermined by overbroad and
21
22 unconstitutional federal directives.

23

As the State with the largest immigrant population in the country—and with a state budget

24 that relies on over $90 billion in federal funds annually—California’s interests would be directly

25 affected by any decision construing the Trump administration’s Executive Order. By threatening
26 the withdrawal of federal funds and the institution of enforcement actions, the Executive Order
27 has created concern and confusion for residents and local jurisdictions within this State.
28
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State of California’s Administrative Motion for Leave to File an Amicus Curiae Brief Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 66 Filed 03/29/17 Page 3 of 4

1

PROPOSED AMICUS BRIEF’S RELEVANCE AND AID TO THE COURT

2

“District courts frequently welcome amicus briefs from non-parties . . . if the amicus has

3 unique information or perspective that can help the court beyond the help that the lawyers from
4 the parties are able to provide.” Sonoma Falls Developers, L.L.C. v. Nev. Gold & Casinos, Inc.,
5
272 F. Supp. 2d 919, 925 (N.D. Cal. 2003) (quotations omitted). In addition, participation of 6

7 amicus curiae may be appropriate where legal issues in a case have potential ramifications

8 beyond the parties directly involved. Id. California has a unique perspective as the political

9 entity of which Plaintiff is a part, and as a sovereign government with important state laws

10 addressing state and local discretion to determine the level of engagement with federal
11 enforcement of federal immigration law. The State’s amicus brief provides the Court a helpful
12 perspective from the State government, and an important insight into the proper scope and
13 14 interpretation of the State laws that are at issue in this lawsuit. Moreover, the State of California
15 has direct experience with and helpful evidence to add as to the impacts of local entanglement

16 with federal immigration enforcement, particularly as it relates to state and local law enforcement.

17 The proposed amicus brief will provide context and support for Plaintiff’s assertions of harm,
18 providing specific information that will aid the Court in determining whether Plaintiffs have met 19
their burden of persuasion on each element of the preliminary injunction standard. 20
Specifically, the President’s Executive Order has created concern and confusion for the 21 22 residents and the law enforcement agencies of the State. No California law, including the TRUST
23 and TRUTH Acts, conflicts with federal law nor interferes with federal efforts to enforce

24 immigration law. Moreover, these state laws are an expression of California’s sovereign and

25 public interest in “the exercise of sovereign power over individuals and entities within . . . [their]
26 jurisdiction” that includes “the power to create and enforce a legal code, both civil and criminal,”
27 particularly when such laws serve the State’s interest “in the well-being of [their] populace.”
28
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1 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601, 602 (1982).

2

The Attorney General and the State of California itself have an interest in the proper

3 application and limitation of the Executive Order as it applies to State law and policy. Moreover,
4 the State’s view of its own laws, and the important policy and practical reasons behind their
5
passage and implementation will aid the Court in understanding the relationship between state 6

7 and local governments and the federal government in the realm of immigration enforcement.

8 These issues are relevant to the disposition of the issues before the Court because they provide

9 clarity and support for Plaintiff’s arguments regarding the harm from the Executive Order and are
10 a clear statement of the public interest that will be served by an injunction in this case. 11
CONCLUSION 12
For the foregoing reasons, the State of California requests that its motion be granted and 13 14 its brief filed.

15 Dated: March 29, 2017 16 17 18 19

Respectfully submitted,
XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General SATOSHI YANAI Supervising Deputy Attorney General

20

21

/s/Lisa C. Ehrlich LISA C. EHRLICH

22

Deputy Attorney General Attorneys for State of California

23

24

25

26

27

28
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1 XAVIER BECERRA Attorney General of California
2 ANGELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 LISA C. EHRLICH Deputy Attorney General
5 State Bar No. 270842 1515 Clay Street, 20th Floor
6 P.O. Box 70550 Oakland, CA 94612-0550
7 Telephone: (510) 879-0173 Fax: (510) 622-2270
8 E-mail: Lisa.Ehrlich@doj.ca.gov Attorneys for State of California
9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14

CITY AND COUNTY OF SAN FRANCISCO, Case No. 3:17-cv-00485-WHO

15

Plaintiff, STATE OF CALIFORNIA’S AMICUS

16

CURIAE BRIEF IN SUPPORT OF

v.

PLAINTIFF’S MOTION FOR

17

PRELIMINARY INJUNCTION

18 DONALD J. TRUMP, President of the United Date:

April 14, 2017

States, UNITED STATES OF AMERICA,

Time:

2:00 p.m.

19 JOHN F. KELLY, Secretary of United States Courtroom: 2

Department of Homeland Security, DANA J. Judge:

Honorable William H. Orrick

20 BOENTE, Acting Attorney General of the

United States, DOES 1-100,

Trial Date: None Set

21

Defendants. Action Filed: January 31, 2017

22

23

24

25

26

27

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1

TABLE OF CONTENTS

2

Page

3 Introduction and Statement of Interest of Amicus Curiae .............................................................. 1

4 Argument ........................................................................................................................................ 2

I. The Executive Order Revives Past Federal Attempts to Compel State

5

Participation in Immigration Enforcement.............................................................. 2

6

A. The Original Secure Communities Program ............................................... 2

B. Recognizing State Concerns, the Federal Government Eliminates

7

the Secure Communities Program............................................................... 4

8

C. Executive Order 13768 Restores the Secure Communities Program and Threatens Cuts to State and Local Funding.......................................... 5

9

II. For Public Safety Reasons, California Has Enacted Legislation Regarding

Local Law Enforcement Discretion to Engage in Federal Immigration

10

Enforcement ............................................................................................................ 7

11

A. Public Safety is Best Served By Allowing State and Local Entities to Make Decisions That Build Trust With Local Communities ................. 8

12

B. California Laws Increase Public Safety and Protect Residents’

Constitutional Rights By Retaining State and Local Discretion to

13

Determine When and How to Assist Federal Immigration

Authorities................................................................................................. 10

14

1. The TRUST Act ............................................................................ 10

15

2. The TRUTH Act ........................................................................... 12

16 Conclusion .................................................................................................................................... 12

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez

5

458 U.S. 592 (1982) ....................................................................................................................7

6

Committee for Immigrant Rights of Sonoma County, et al. v. County of Sonoma No. 08-4220 (N.D. Cal.)..............................................................................................................4

7 Galarza v. Szalczyk

8

745 F.3d 634 (3d Cir. 2014)........................................................................................................3

9 Garcia v. Taylor 40 F.3d 299 (9th Cir. 1994).........................................................................................................3
10

11

Gonzalez v. ICE Case No. 13-0441, 2014 WL 12605368 (C.D. Cal. July 28, 2014) ............................................4

12 Miranda-Olivares v. Clackamas Cnty.

13

Case No. 12-02317, 2014 WL 1414305 (D. Or. Apr. 11, 2014) ................................................3

14 Morales v. Chadbourne

793 F.3d 208 (1st Cir. 2015) .......................................................................................................3 15

Printz v. United States

16

521 U.S. 898 (1997) ..................................................................................................................11

17 Roy v. County of Los Angeles

18

No. 12-cv-9012 (C.D. Cal.).........................................................................................................4

19 Steinle v. City & Cty. of San Francisco Case No. 16-cv-02859, 2017 WL 67064 (N.D. Cal. 2017) ......................................................11
20

STATUTES 21

22

8 United States Code § 1252(i) ......................................................................................................................................3

23

§ 1373................................................................................................................................ passim

§ 1373(a) .....................................................................................................................................7

24

§ 1373(b) .....................................................................................................................................7

25

26

27

28
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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 California Government Code

§ 7282........................................................................................................................................10

4

§ 7282.5.....................................................................................................................................10

5

§ 7282.5(a) ................................................................................................................................10 § 7283........................................................................................................................................12

6

§ 7283.1.....................................................................................................................................12

§ 7283.1(a) ................................................................................................................................12

7

§ 7283.1(c) ................................................................................................................................12

§ 7283.1(d) ................................................................................................................................12

8

§ 7283.2.....................................................................................................................................12

9 California Statutes

10

c. 570, § 1(d) ........................................................................................................................3, 11

c. 768 ........................................................................................................................................12

11

CONSTITUTIONAL PROVISIONS

12

United States Constitution, Fourth Amendment ..................................................................... passim 13

14 OTHER AUTHORITIES

15

8 Code of Federal Regulations § 287.7.........................................................................................................................................3

16 Cal. Sen. Comm. on Public Safety, “Report on AB 4” (Jul. 1, 2013) ............................................10

17

Craig E. Ferrell, Jr. et al., “M.C.C. Immigration Committee Recommendations For

18

Enforcement of Immigration Laws by Local Policy Agencies” (June 2006) .............................9

19 ICE, “Weekly Declined Detainer Outcome Report for Recorded Declined

20

Detainers Jan. 28-Feb. 3, 2017” (Mar. 20, 2017)........................................................................6

21

Los Angeles Police Dep’t, “Decline in Reporting of Domestic Abuse Among Hispanic Population” (Mar. 21, 2017) ........................................................................................8

22 Nik Theodore, Dep’t of Urban Planning and Policy, Univ. of Ill. At Chicago,

23

Insecure Communities: Latino Perceptions of Police Involvement in

Immigration Enforcement (May 2013) .......................................................................................8 24

President’s Task Force on 21st Century Policing, Final Report (Washington D.C.

25

May 2015) ...................................................................................................................................9

26 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR.

27

FOR AM. PROGRESS (Jan. 26, 2017) ............................................................................................9

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 U.S. Dep’t of Homeland Sec. Mem. From Jeh Charles Johnson, Sec’y of Homeland Sec., “Secure Communities” (Nov. 20, 2014)...........................................................4
4

5

U.S. Dep’t of Homeland Sec. Mem. from John Kelly, Sec’y of Homeland Sec., “Enforcement of the Immigration Laws to Serve the National Interest” (Feb.

6

20, 2017) .....................................................................................................................................5

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

INTRODUCTION AND STATEMENT OF INTEREST OF AMICUS CURIAE

2

The Attorney General is the State’s chief law officer and is vested with supervisorial

3 authority over local law enforcement agencies in the State of California. The State has a strong

4 interest in ensuring public safety and protecting the rights of its residents by maintaining an 5 effective law enforcement system. Like many local law enforcement agencies in California and 6 throughout the Nation, the State has concluded that public safety is best protected when all 7 members of our community—regardless of immigration status—are encouraged to report crimes 8 and participate in policing efforts without fear of immigration consequences. California law

9 reflects this faith in community policing by promoting a relationship of trust and engagement 10 between law enforcement and the people they protect, while also providing law enforcement 11 agencies with the discretion to engage with federal immigration authorities in certain 12 circumstances. It is in the best interest of the State to see that California statutes protecting these 13 priorities are properly interpreted and enforced, and are not undermined by overbroad and

14 unconstitutional federal directives.

15

Executive Order 13768, issued on January 25, 2017, is an aggressive attempt by President

16 Trump to coerce state and local jurisdictions into participating in immigration enforcement, even

17 in situations where that participation would undermine public safety and go against the best

18 judgment of the law enforcement officials who are most familiar with local communities. Among

19 other things, the Executive Order: reinstates the federal “Secure Communities” program, which

20 enlists local authorities in detaining persons the federal government believes to be removable; 21 directs that eligibility for federal funds will depend on whether a jurisdiction willfully refuses to 22 comply with 8 U.S.C. 1373, a federal statute regarding the sharing of “information regarding the 23 citizenship or immigration status” of individuals with the federal government; gives the Secretary 24 of Homeland Security discretion to designate local jurisdictions as “sanctuary jurisdictions”;

25 orders the Secretary to publish a weekly report of jurisdictions that decline detainer requests; and 26 orders the United States Attorney General to take enforcement action against entities that violate 27 Section 1373 or have statutes, policies, or practices that prevent or hinder the enforcement of

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1 Federal law.1 As the State with the largest immigrant population in the country—and with a state

2 budget that relies on over $90 billion in federal funds annually—California’s interests would be

3 directly affected by any decision construing this Executive Order. Although no California law

4 conflicts with Section 1373, the Executive Order has created concern and confusion for residents

5 and local jurisdictions within this State.

6

To assist the Court in understanding the risks and confusion created by the Executive

7 Order, this brief will first review developments in federal law and policy that prompted California

8 to adopt statutes protecting the State’s discretion to make public-safety judgments about when

9 and how to assist federal authorities in carrying out their responsibilities to enforce federal

10 immigration laws. Those developments include the introduction of the original Secure

11 Communities program, widespread concerns about the constitutionality of that program, the

12 federal government’s decision to terminate the program in light of those concerns, and President

13 Trump’s decision to revive the program in an even more coercive form. Next, the brief will

14 describe the two statutes that California adopted—the TRUST Act and the TRUTH Act—to

15 protect public safety and resident’s constitutional rights, and the potential ramifications of the

16 Executive Order for those state laws.

17 18 I. 19 20

ARGUMENT
THE EXECUTIVE ORDER REVIVES PAST FEDERAL ATTEMPTS TO COMPEL STATE PARTICIPATION IN IMMIGRATION ENFORCEMENT
A. The Original Secure Communities Program

21

In 2008, the Department of Homeland Security (DHS) launched the Secure Communities

22 program, which enlisted local law enforcement agencies to engage in federal immigration

23 enforcement. First, when state or local law enforcement authorities submitted fingerprints of a

24 person booked for arrest to the FBI, the FBI shared those fingerprints with Immigration and 25 Customs Enforcement (ICE), which used them to determine if the person was subject to removal.2

26

1 Exec. Order No. 13768, 82 Fed. Reg. 8799, §§ 9, 10 (Jan. 25, 2017).

27

2 U.S. Immigration and Customs Enforcement, “Secure Communities – Overview,”

https://www.ice.gov/secure-communities.

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1 Second, if ICE thought the person was removable, it could ask local agencies to detain the

2 person—without any federal reimbursement—beyond the time when they would normally be

3 released. The program authorized ICE to issue a “detainer” request to state or local law

4 enforcement, asking the local agency to hold the person for an additional 48 hours to allow time 5 for ICE to interview the person or take them into custody.3 As the California Legislature later

6 determined, Secure Communities raised serious Fourth Amendment concerns and undermined

7 California’s community policing efforts. See 2013 Cal. Stat., Ch. 570, § 1(d); infra p. 10.

8

Despite language in the standard ICE detainer form suggesting that state and local agencies

9 were “require[d]” to hold individuals that were the subject of an ICE detainer request, federal 10 courts held that the requests were voluntary in nature.4 For example, the Third Circuit concluded

11 that “immigration detainers do not and cannot compel a state or local law enforcement agency to

12 detain suspected aliens subject to removal” and that local law enforcement agencies are “free to

13 disregard the ICE detainer.” Galarza v. Szalczyk, 745 F.3d 634, 636, 645 (3rd Cir. 2014); see

14 also Miranda-Olivares v. Clackamas Cnty., Case No. 12-02317, 2014 WL 1414305 (D. Or. Apr.

15 11, 2014) (same); cf. Garcia v. Taylor, 40 F.3d 299, 303-04 (9th Cir. 1994), superseded on other

16 grounds by 8 U.S.C. § 1252(i) (in habeas context, detainers do not allow, much less compel, law

17 enforcement agencies to hold someone past end of term).

18

Federal courts also held that prolonged detentions by local authorities pursuant to ICE

19 detainer requests violated the Fourth Amendment unless they were independently supported by

20 probable cause. See, e.g., Morales v. Chadbourne, 793 F.3d 208, 217-18 (1st Cir. 2015)

21 (detention solely on ICE detainer constituted a new seizure for Fourth Amendment purposes that

22 “must be supported by a new probable cause justification”); Miranda-Olivares, 2014 WL

23 1414305, at *11 (hold pursuant to a detainer a new seizure and “ICE detainer alone did not

24

3 Id. at “How does Secure Communities Work?”

25

4 The original detainer form used under the Secure Communities program stated: “It is requested

that you: Please accept this notice as a detainer.... Federal regulations (8 CFR 287.7) require that you

26 detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for ICE to assume custody of the alien.” Galarza v. Szalczyk, 745 F.3d 634, 637

27 (3d Cir. 2014) (quoting form). As discussed infra p. 5, DHS has issued a new form that again at least implies compliance is not voluntary.

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1 demonstrate probable cause.”); Gonzalez v. ICE, Case No. 13-0441, 2014 WL 12605368, at *12-

2 13 (C.D. Cal. July 28, 2014) (plaintiffs “sufficiently pleaded that Defendants exceeded their

3 authorized power” by issuing “immigration detainers without probable cause”).

4

The Secure Communities program caused direct harm within the State of California.

5 Residents who had been held pursuant to ICE detainer requests sued to vindicate their

6 constitutional rights. Several of our local governments paid settlements to such plaintiffs out of 7 state and local tax revenues.5 Concerns arising from these incidents informed the California

8 Legislature’s adoption of the TRUST Act, which aimed to retain an appropriate amount of state

9 and local discretion in determining whether considerations of public safety weigh in favor of

10 cooperating with federal immigration enforcement. See infra, p. 10.

11

B. Recognizing State Concerns, the Federal Government Eliminates the

Secure Communities Program 12

13

In 2014, DHS announced that the Secure Communities program would be discontinued,

14 acknowledging an “increasing number of federal court decisions that hold that detainer-based 15 detention by state and local law enforcement agencies violates the Fourth Amendment.”6

16 Moreover, DHS recognized that Secure Communities engendered “general hostility toward the 17 enforcement of our immigration laws” from law enforcement throughout the country.7 DHS

18 created a new program entitled “Priority Enforcement Program” (PEP) to replace Secure

19 Communities. The new program still relied on fingerprint-based biometric data submitted by

20 state and local law enforcement to the FBI. But due to the Fourth Amendment concerns

21

22

5 For example, Los Angeles paid a settlement of $255,000 in Roy v. County of Los Angeles, No.

12-cv-9012 (C.D. Cal.). Notice of Meeting, County of Los Angeles Claims Board (Nov. 16, 2015)

23 (recommended settlement of $255k to County Board for detaining individual for 89 days pursuant to ICE hold), http://file.lacounty.gov/SDSInter/lac/1016994_111615.pdf. See also Settlement Agreement at 2-5,

24 Committee for Immigrant Rights of Sonoma County, et al. v. County of Sonoma, No. 08-4220 (N.D. Cal.) ($8k settlement after unlawful detainer), https://www.aclunc.org/sites/default/files/asset_upload

25 _file403_9271.pdf.

6 U.S. Dep’t of Homeland Sec. Mem. From Jeh Charles Johnson, Sec’y of Homeland Sec., 26 “Secure Communities,” at 2 (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/

14_1120_memo_secure_communities.pdf.

27

7 Id. at 1.

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1 surrounding the original detainer requests, DHS replaced them with “requests for notification

2 (i.e., requests that state or local law enforcement notify ICE of a pending release during the time 3 that person is otherwise in custody under state or local authority).”8 Requests for detention were 4 only to be used in special circumstances where consistent with Fourth Amendment requirements.9

5

C. Executive Order 13768 Restores the Secure Communities Program and

Threatens Cuts to State and Local Funding 6

7

On January 25, 2017, without addressing any of the concerns that DHS had previously

8 raised about Secure Communities, the President directed DHS to terminate PEP and re-institute

9 the Secure Communities program. Exec. Order, § 10(a). DHS has already taken action to

10 execute this directive. In his memorandum implementing the Executive Order, DHS Secretary

11 Kelly ordered that “[e]ffective immediately, [PEP] is terminated and the Secure Communities 12 Program shall be restored.”10 On March 24, 2017, DHS replaced the PEP forms with a single 13 new form.11 The new form removes the language stating that the request is “voluntary” and 14 provides less information to local law enforcement about the individual than the prior form.12 On

15 the same day, DHS released a new policy for issuing detainers, requiring that all detainer requests 16 be accompanied with an administrative warrant.13 These “warrants” are signed by an

17 immigration officer—not a neutral magistrate—and provide local law enforcement with no

18 substantial additional information about why ICE is requesting the detainer.

19

20

8 Id. at 2 (emphasis in original).

21

9 Id.

10 U.S. Dep’t of Homeland Sec. Mem. from John Kelly, Sec’y of Homeland Sec., “Enforcement 22 of the Immigration Laws to Serve the National Interest,” at 3 (Feb. 20, 2017), https://www.dhs.gov/sites/

default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National23 Interest.pdf.

24

11 See I-247A, “Immigration Detainer-Notice of Action,” https://www.ice.gov/sites/default/files/

documents/Document/2017/I-247A.pdf.

25

12 The new form no longer requires a description of why the individual fits into DHS’s

immigration enforcement priorities, including the specific prior criminal action that made the individual a 26 priority for removal under PEP.

27

13 ICE Policy No. 10074.2, “Issuance of Immigration Detainers by ICE Officers” § 2.4 (Mar. 24,

2017), https:// www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf.

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1

None of these changes appear to resolve the Fourth Amendment concerns surrounding the

2 Secure Communities program. The revised forms and administrative warrants may not in all

3 cases provide local authorities with the information necessary to make an independent

4 determination that there is probable cause to detain an individual for an extended period, nor the

5 assurance that a neutral magistrate has made such a determination. And recent developments

6 suggest that ICE may not have this information, or no way to provide it. Last week, in releasing

7 its first weekly list of jurisdictions that declined detainer requests, ICE admitted that “it does not

8 document, in a systematically reportable manner, the immigration status of an alien at the time of 9 detainer issuance.”14 If ICE cannot provide documentation to local law enforcement of an

10 individual’s immigration status when it issues a detainer request or administrative warrant, it is

11 unclear how it can provide the independent probable cause necessary under the Fourth

12 Amendment for state and local law enforcement agencies to constitutionally detain individuals.

13

At the same time, it appears that the Administration may be abandoning its position that

14 detainer requests are voluntary. In remarks on March 27, U.S. Attorney General Sessions said

15 that “some states and cities have adopted policies designed to frustrate the enforcement of our

16 immigration laws. This includes refusing to detain known felons under federal detainer requests, 17 or otherwise failing to comply with these laws.”15 Especially when considered in light of the

18 Administration’s deletion of the word “voluntary” from its detainer request form, those remarks

19 suggest that the Administration is attempting to convince local jurisdictions that they are required

20 by law to accede to federal detainer requests. Such a position would be at odds with anti-

21 commandeering principles under the Tenth Amendment. See infra p. 11.

22

In addition to reviving the Secure Communities program, President Trump’s Executive

23 Order stated that eligibility for federal funds will depend upon whether a jurisdiction “willfully

24 refuse[s] to comply with 8 U.S.C. 1373 (sanctuary jurisdictions),” and ordered the U.S. Attorney

25

14 ICE, “Weekly Declined Detainer Outcome Report for Recorded Declined Detainers Jan. 28-Feb.

3, 2017,” at 34 (Mar. 20, 2017), https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf.

26

15 U.S. Attorney General Sessions, “Attorney General Jeff Sessions Delivers Remarks Announcing

27 Sanctuary Jurisdictions” (Mar. 27, 2017) (Sessions Remarks), https:// www.justice.gov/opa/speech/ attorney-general-jeff-sessions-delivers-remarks-announcing-sanctuary-jurisdictions (emphasis added).

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1 General to take enforcement actions against “any entity that violates 8 U.S.C. 1373, or which has 2 in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”16

3 This week, Attorney General Sessions indicated that the Administration may take the position

4 that Section 1373 requires compliance with detainer requests, suggesting that a policy of refusing

5 detainers “frustrate[s] the enforcement of our immigration laws,” and declaring that such policies 6 place jurisdictions “at risk of losing valuable federal dollars.”17

7

These statements are bound to create confusion for state and local officials. By its terms,

8 Section 1373 says nothing about detention. It only prohibits state or local governments from

9 “prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or

10 receiving from, the Immigration and Naturalization Service information regarding the citizenship

11 or immigration status, lawful or unlawful, of any individual,” or from prohibiting the

12 maintenance or exchange of information regarding the immigration status of any individual. 8

13 U.S.C. § 1373(a)-(b) (emphasis added). Yet the Administration appears to be using Section 1373

14 as a means of intimidating state and local jurisdictions into detaining immigrants—even when

15 local officials have no independent probable cause justifying such a detention, and even when it

16 would contravene local policies or laws or local public-safety judgments. The State has an

17 interest in protecting local and state law enforcement agencies from such federal intimidation.

18 II. FOR PUBLIC SAFETY REASONS, CALIFORNIA HAS ENACTED LEGISLATION

REGARDING LOCAL LAW ENFORCEMENT DISCRETION TO ENGAGE IN FEDERAL

19

IMMIGRATION ENFORCEMENT

20

States have an interest in “the exercise of sovereign power over individuals and entities

21 within . . . [their] jurisdiction” that includes “the power to create and enforce a legal code, both

22 civil and criminal.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601

23 (1982). Moreover, the States have an independent interest in the “well-being of [their] populace.”

24 Id. at 602. As an exercise of this sovereign right to protect the health, welfare, and safety of its

25 residents, California has adopted statutes that facilitate public safety by increasing trust between

26

16 Exec. Order 13,768, 82 Fed. Reg. 8799, §§ 9, 10 (Jan. 25, 2017).

27

17 Sessions Remarks.

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1 law enforcement agencies and the communities they protect. These important statutes are

2 consistent with federal law, and the State has a strong interest in ensuring that they are not

3 misconstrued or undermined by the Executive Order and the federal government’s attempts to

4 coerce compliance.

5

A. Public Safety Is Best Served by Allowing State and Local Entities to Make

Decisions That Build Trust with Local Communities 6

The safety of a community increases when all residents—regardless of immigration

7

status—feel comfortable reporting crimes and interacting with local police without fear of

8

immigration consequences. In contrast, when local law enforcement agencies take an active role

9

in enforcing federal immigration laws with no view to balancing immigration enforcement

10

against local public safety priorities, and when law enforcement officials are perceived as arms or

11

agents of federal immigration authorities in all situations, it can undermine the trust between law

12

enforcement and the community. Indeed, recent data suggest that many undocumented

13

immigrants are already fearful to seek the assistance of or make reports to local law enforcement.

14

For example, one study of Latinos in four major cities found that 70% of undocumented

15

immigrants and 44% of all Latinos are less likely to contact law enforcement if they are victims

16

of a crime for fear that the police will ask them or people they know about their immigration

17 status.18 This fear may already be increasing—for example, the Los Angeles Police Department

18

announced last week that reports from Hispanics of rape in Los Angeles has fallen 25% from last

19 year; reports of domestic violence are down 10%.19 LAPD “believes deportation fears may be

20 preventing Hispanic members of the community from reporting when they are victimized.”20

21

This fear endangers public safety for everyone—including non-immigrant residents.

22

California is not the only jurisdiction that has come to this conclusion. The Major Cities

23

Chiefs Association (MCCA), which represents the 68 largest law enforcement agencies in the

24

18 Nik Theodore, Dep’t of Urban Planning and Policy, Univ. of Ill. At Chicago, Insecure 25 Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5 (May 2013),

http://www.policylink.org/site/default/files/INSECURE_Communities_Report_Final.PDF.

26

19 Los Angeles Police Dep’t, “Decline in Reporting of Domestic Abuse Among Hispanic

27 Population,” (Mar. 21, 2017), http://www.lapdonline.org/home/news_view/61998.

20 Id. 28
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1 United States, has voiced similar concerns about local and state agencies enforcing federal

2 immigration law indiscriminately because it “undermines the trust and cooperation with 3 immigrant communities.”21 When undocumented immigrants’ “primary concern is that they will

4 be deported or subjected to an immigration status investigation, then they will not come forward 5 and provide needed assistance and cooperation.”22 Commingling local law enforcement with

6 federal immigration enforcement “result[s] in increased crime against immigrants and in the

7 broader community, creat[ing] a class of silent victims and eliminat[ing] the potential for 8 assistance from immigrants in solving crimes or preventing future terroristic acts.”23

9

The federal government’s own 21st Century Policing Task Force came to the same

10 conclusion. In order to “build relationships based on trust with immigrant communities,” it

11 recommended “[d]ecoupl[ing] federal immigration enforcement from routine local policing for 12 civil enforcement and nonserious crime.”24 It also recommended that DHS “should terminate the

13 use of the state and local criminal justice system, including through detention, notification, and

14 transfer requests, to enforce civil immigration laws against civil and non-serious criminal 15 offenders.” 25 These conclusions are supported by data from a recent study, which shows that

16 crime is statistically significantly lower in counties that do not assist federal immigration

17 enforcement officials by holding people beyond their release date on the basis of immigration 18 detainers, when compared to counties that comply with immigration detainer requests.26

19 Recognizing state and local discretion to determine when and how to assist with federal

20

21 Major Cities Chiefs Association, “Immigration Position” (Oct. 2011),

https://majorcitieschiefs.com/pdf/news/immigration_position112811.pdf.

21

22 Craig E. Ferrell, Jr. et al., “M.C.C. Immigration Committee Recommendations For Enforcement

22 of Immigration Laws by Local Policy Agencies,” at 6 (June 2006), https://www.majorcitieschiefs.com/pdf/ news/MCC_Position_Statement.pdf.

23

23 Id.

24

24 President’s Task Force on 21st Century Policing, Final Report 18 (Washington D.C. May

2015), http://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

25

25 Id.

26

26 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR AM.

PROGRESS (Jan. 26, 2017),

27 https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effectsofsanctuarypolicies-on-crime-and-the-economy/.

28 9

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Case 3:17-cv-00485-WHO Document 66-1 Filed 03/29/17 Page 15 of 18

1 immigration efforts based on local public safety concerns thus increases public safety for all state

2 residents.

3

B. California Laws Increase Public Safety and Protect Residents’

Constitutional Rights by Retaining State and Local Discretion to

4

Determine When and How to Assist Federal Immigration Authorities

5

1. The TRUST Act

6

Many local jurisdictions objected to Secure Communities in its initial incarnation because

7 of its impact on the relationship between communities and local law enforcement and the Fourth 8 Amendment problems it created.27 In 2013, as a response to these growing concerns and to

9 protect the public safety of its residents, California enacted the Transparency and Responsibility

10 Using State Tools Act (TRUST Act), Government Code sections 7282 and 7282.5. The TRUST

11 Act limits the situations in which local law enforcement agencies may comply with ICE detainer

12 requests to those situations where, in the State’s considered judgment, public safety weighs in

13 favor of assistance to federal immigration authorities. If a law enforcement agency wishes to

14 comply with a voluntary ICE detainer request, the TRUST Act requires two conditions be met.

15 First, the continued detention cannot violate any federal, state, or local law, or any local policy.

16 Cal. Gov’t Code § 7282.5(a). Importantly, this includes the protections afforded by the Fourth

17 Amendment. Second, the individual must have been convicted of certain specific crimes or meet 18 other specific criminal criteria.28 Only if both conditions are met may local law enforcement

19 detain an individual for up to 48 hours beyond their release date to permit ICE to assume custody

20 of the individual.

21

In passing the law, the Legislature explicitly found that “[t]he Secure Communities

22 program and immigration detainers harm community policing efforts because immigrant residents

23 who are victims of or witnesses to crime, including domestic violence, are less likely to report

24

27 Cal. Sen. Comm. on Public Safety, “Report on AB 4,” at 8-9 (Jul. 1, 2013),

https://leginfo.legislature.gov/faces/billAnalysisClient.xhtml?bill_id=201320140AB4 (collecting local

25 concerns and citing then-San Francisco Sheriff Hennessey expressing dismay at Secure Communities and

stating, “There should be no penalty for a victim of a crime to call the police.”).

26

28 The statute sets out seven criteria, including if the “individual has been convicted of a felony

27 punishable by imprisonment in a state prison” or “has been convicted within the past five years of a misdemeanor that is punishable as either a misdemeanor or a felony.” Cal. Gov’t Code § 7282.5(a).

28 10

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Case 3:17-cv-00485-WHO Document 66-1 Filed 03/29/17 Page 16 of 18

1 crime or cooperate with law enforcement when any contact with law enforcement could result in

2 deportation.” 2013 Cal. Stat., Ch. 570, § 1(d). Moreover, based on experience, the State found

3 that “[t]he program can result in a person being held and transferred into immigration detention

4 without regard to whether the arrest is the result of a mistake, or merely a routine practice of

5 questioning individuals involved in a dispute without pressing charges. Victims or witnesses to

6 crimes may otherwise have recourse to lawful status (such as U-visas or T-visas) that detention

7 resulting from the Secure Communities program obstructs.” Id.

8

Importantly, the TRUST Act only limits a law enforcement agency’s discretion to detain

9 individuals. The Act does not prohibit compliance with Section 1373, which applies only to

10 sharing “information regarding the citizenship or immigration status” of individuals with the

11 federal government. 8 U.S.C. § 1373 (emphasis added); see Steinle v. City & Cty. of San

12 Francisco, --- F. Supp. 3d ---, 2017 WL 67064, at *12 (N.D. Cal. 2017) (“The statute, by its

13 terms, governs only ‘information regarding the citizenship or immigration status, lawful or

14 unlawful, of any individual.’”). There is no conflict between these two statutes, and following the

15 TRUST Act does not cause any agency to violate Section 1373. Moreover, any reading of

16 Section 1373 that compelled state and local officials to accede to federal detainer requests would

17 raise serious Tenth Amendment concerns. Printz v. United States, 521 U.S. 898, 925 (1997)

18 (“The Federal Government . . . may not compel the States to implement, by legislation or

19 executive action, federal regulatory programs.”). Nor does following the TRUST Act cause any

20 agency to “prevent[] or hinder[] the enforcement of Federal law.” To the extent the State can

21 determine what is meant by that broad phrase, the requirements of the TRUST Act are in

22 compliance with federal immigration laws and regulations, and do not interfere with the federal

23 government’s ability to use federal resources to enforce federal immigration law. Nevertheless,

24 the reinstitution of Secure Communities and the Administration’s recent suggestion that federal

25 law makes detainer requests mandatory raise the same serious concerns about public safety and

26 constitutional violations that originally prompted enactment of the TRUST Act.

27

28 11
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Case 3:17-cv-00485-WHO Document 66-1 Filed 03/29/17 Page 17 of 18

1

2. The TRUTH Act

2

More recently, California added to its policy of enhancing trust between immigrant

3 communities and local law enforcement by enacting the Transparent Review of Unjust Transfers

4 and Holds (TRUTH) Act, Government Code sections 7283, 7283.1, and 7283.2. The TRUTH 5 Act provides individuals who are in the custody of local law enforcement agencies with 6 information about their legal and procedural rights should ICE agents wish to talk to them. Cal. 7 Gov’t Code § 7283.1(a)-(b). The TRUTH Act also increases transparency around local 8 cooperation with federal authorities by making records relating to ICE access subject to

9 disclosure under the California Public Records Act. See id. § 7283.1(c)-(d); see also 2016 Cal. 10 Stat., c. 768 (A.B. 2792) § 1(h)-(i). The TRUTH Act reflects a renewed commitment by the State 11 to the policy that public safety and the public interest are best served by preserving state and local 12 discretion to determine an appropriate level of engagement between local law enforcement and 13 federal immigration authorities based on local public safety and policy concerns.

14

Like the TRUST Act, the TRUTH Act does not prohibit compliance with 8 U.S.C. § 1373.

15 It does not prohibit or limit the exchange of immigration or citizenship information with the

16 federal government—the only topic governed by Section 1373. The State has a clear interest in

17 seeing that the policies and protections in its laws continue to benefit its residents, and are not

18 undermined by the federal government’s actions to coerce compliance from state and local law

19 enforcement.

20

CONCLUSION

21

California has a sovereign right and responsibility to protect the safety and the

22 constitutional rights of its residents, including by adopting laws and policies that place

23 appropriate limits on the ability of the federal government to use state and local resources for the

24 enforcement of federal immigration policy. President Trump’s ambitions to compel state and

25 local authorities to enforce federal immigration policy are subject to—and constrained by—
26 federal statutory and constitutional law. California authorities are entitled to promote their own
27 laws and policies to protect public safety through legislation such as the TRUST and TRUTH
28 Acts, which does not conflict with federal law. 12
State of California’s Amicus Curiae Brief In Support of Plaintiff’s Motion for Preliminary Injunction Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 66-1 Filed 03/29/17 Page 18 of 18

1

2 Dated: March 29, 2017 3 4 5 6

Respectfully Submitted,
XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General SATOSHI YANAI Supervising Deputy Attorney General

7

8

/s/Lisa C. Ehrlich

LISA C. EHRLICH

9

Deputy Attorney General

Attorneys for State of California 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 13
State of California’s Amicus Curiae Brief In Support of Plaintiff’s Motion for Preliminary Injunction Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 66-2 Filed 03/29/17 Page 1 of 2

1 XAVIER BECERRA Attorney General of California
2 ANGELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 LISA C. EHRLICH Deputy Attorney General
5 State Bar No. 270842 1515 Clay Street, 20th Floor
6 P.O. Box 70550 Oakland, CA 94612-0550
7 Telephone: (510) 879-0173 Fax: (510) 622-2270
8 E-mail: Lisa.Ehrlich@doj.ca.gov Attorneys for State of California
9

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13

14

15 CITY AND COUNTY OF SAN FRANCISCO, Case No. 3:17-cv-00485-WHO

16

Plaintiff, [PROPOSED] ORDER GRANTING

STATE OF CALIFORNIA’S

17

v.

ADMINISTRATIVE MOTION FOR

LEAVE TO FILE AN AMICUS BRIEF

18

DONALD J. TRUMP, President of the United Date:

April 14, 2017

19 States, UNITED STATES OF AMERICA,

Time:

2:00 p.m.

JOHN F. KELLY, Secretary of United States Courtroom: 2

20 Department of Homeland Security, DANA J. Judge:

Honorable William H. Orrick

BOENTE, Acting Attorney General of the

21 United States, DOES 1-100,

Trial Date: None Set

22

Defendants. Action Filed: January 31, 2017

23

24

25

26

27

28
1
[Proposed] Order Granting State of California’s Administrative Motion for Leave to File Amicus Curiae Brief Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 66-2 Filed 03/29/17 Page 2 of 2

1

[PROPOSED] ORDER

2

After consideration of the motion and proposed brief, pursuant to its inherent authority, the

3 Court finds that the amicus curiae brief will assist the Court in deciding the motion for

4 preliminary injunction. Accordingly, the State of California’s administrative motion for leave to

5 file an amicus curiae brief in support of Plaintiff’s motion for preliminary injunction is

6 GRANTED and the Court ORDERS that the brief submitted by the State of California be filed.

7

8 IT IS SO ORDERED.

9

10

Dated: ___________________________

11

12

WILLIAM H. ORRICK

13

United States District Court Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
2
[Proposed] Order Granting State of California’s Administrative Motion for Leave to File Amicus Curiae Brief Case No. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 67 Filed 03/29/17 Page 1 of 4

1 LATHAM & WATKINS LLP

Robert W. Perrin (SBN 194485)

2

robert.perrin@lw.com

Julie R. F. Gerchik (SBN 237764)

3

julie.gerchik@lw.com

Jamie L. Sprague (SBN 287689)

4

jamie.sprague@lw.com

355 South Grand Avenue

5 Los Angeles, California 90071

Telephone: (213) 485-1234

6 Facsimile: (213) 891-8763

7 Attorneys for Amicus Curiae
8 Anti-Defamation League

9

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION
14

15 CITY AND COUNTY OF SAN
FRANCISCO, 16

17

Plaintiffs

18

v.

19 DONALD J. TRUMP, et al.,

20

Defendants.

21

22

Case No. 17-cv-00485-WHO

The Honorable William H. Orrick

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE ANTIDEFAMATION LEAGUE IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept.:

April 14, 2017 2:00 p.m. Courtroom 2

23

Date Filed: January 31, 2017

24

Trial Date: Not yet set

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83425737

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE ANTI-DEFAMATION LEAGUE Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67 Filed 03/29/17 Page 2 of 4

1

Pursuant to Federal Rule of Civil Procedure 7, the Anti-Defamation League (“ADL”)

2 respectfully moves for leave to file the concurrently-lodged brief as amicus curiae in support of

3 Plaintiff’s Motion for Preliminary Injunction (ECF No. 21) (the “Motion”).

4 I. IDENTITY OF AMICUS CURIAE

5

ADL is a non-profit organization that fights anti-Semitism and all forms of bigotry,

6 defends democratic ideals, and protects civil rights. ADL was founded in 1913 with a dual

7 mission to stop the defamation of the Jewish people and to secure justice and fair treatment to all.

8 ADL has 26 regional offices across the country and five offices in California alone, including an

9 office in the San Francisco Bay Area.

10 II. MOVANT’S INTEREST

11

ADL works closely with federal, state and local law enforcement agencies on issues

12 involving extremist and hate groups in the United States, and on the investigation and

13 prosecution of hate crimes. Each year, it trains more than 14,000 officers on hate crimes, bias,

14 extremism, and terrorism. Law Enforcement Partnerships, ADL, https://www.adl.org/what-we-

15 do/combat-hate/law-enforcement-partnerships (last visited Mar. 22, 2017). It provides training

16 through a national network of regional offices that help law enforcement officers recognize and

17 identify hate crimes and investigate them thoroughly and with the appropriate sensitivity. Id. In

18 partnership with the United States Holocaust Memorial Museum, ADL also has trained more

19 than 130,000 law enforcement professionals through its program Law Enforcement and Society:

20 Lessons of the Holocaust, which draws on the lessons of the Holocaust to train law enforcement

21 personnel to increase understanding of their role as guardians of the Constitution, our democratic

22 principles and the people they serve. Law Enforcement & Society: Lessons of the Holocaust,

23 ADL, https://www.adl.org/who-we-are/our-organization/signature-programs/law-enforcement-

24 training/law-enforcement-society (last visited Mar. 22, 2017). This program is mandatory for

25 FBI New Agents and has become standard protocol for several major metropolitan police forces,

26 the Office of Homeland Security and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

27 Id.

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83425737

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS

1

CURIAE ANTI-DEFAMATION LEAGUE

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67 Filed 03/29/17 Page 3 of 4

1

ADL also has unmatched expertise concerning the development of federal and state hate

2 crimes legislation. In 1981, ADL drafted the nation’s first model hate crime law which provided

3 for increased penalties for people who target their victims because of race, religion, national

4 origin, gender, or sexual orientation. Hate Crimes, ADL, https://www.adl.org/what-we-

5 do/combat-hate/hate-crimes (last visited Mar. 22, 2017). The District of Columbia and 45 states

6 have enacted statutes based on, or similar to, ADL’s model. Id. ADL also led a large coalition

7 advocating for the passage of the federal Matthew Shepard and James Byrd, Jr. Hate Crimes

8 Prevention Act (“HCPA”), signed into law by President Obama on October 28, 2009 (codified at

9 18 U.S.C. § 249). Id. HCPA is a comprehensive federal hate crimes statute that gives the United

10 States Department of Justice the power to investigate and prosecute violent crimes where the

11 perpetrator chooses the victim because of the person’s actual or perceived race, color, religion,

12 national origin, gender, sexual orientation, gender identity, or disability. 18 U.S.C. § 249.

13 III. DESIRABILITY OF AMICUS BRIEF

14

Through its extensive work with law enforcement and its specialized expertise in hate

15 crimes, ADL is uniquely situated to assist the Court in evaluating the impact of President Donald

16 J. Trump’s January 25, 2017 executive order directing retaliation against state, local, and

17 municipal governments that he deems to be “sanctuary jurisdictions.” Exec. Order 13,768, 82

18 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). Specifically, ADL can provide

19 perspective on the likely suppressive effect of the Executive Order on the reporting and

20 prevention of crimes, including hate crimes. ADL’s proposed amicus brief provides additional

21 context and information relating to the irreparable harm and public interest prongs of the

22 preliminary injunction. The input and perspective of ADL into law enforcement and crime

23 reporting is broader than that of the parties—and ADL’s expertise in this area surpasses that of

24 the parties. ADL’s arguments regarding irreparable harm and public interest further

25 demonstrate, beyond the parties’ briefing, why Plaintiff City and County of San Francisco’s

26 Motion should be granted and the Executive Order should be enjoined.

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83425737

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS

2

CURIAE ANTI-DEFAMATION LEAGUE

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67 Filed 03/29/17 Page 4 of 4

1

For the foregoing reasons, the Motion for Leave to File Brief of Amicus Curiae Anti-

2 Defamation League should be granted.

3 DATED: March 29, 2017
4 5 6 7 8

LATHAM & WATKINS LLP
By /s/ Robert W. Perrin Robert W. Perrin Julie R. F. Gerchik Jamie L. Sprague
355 S. Grand Ave. Los Angeles, CA 90071 (213) 485-1234

9

ANTI-DEFAMATION LEAGUE

10

Steven M. Freeman

11

Lauren A. Jones

Michelle N. Deutchman

12

Anti-Defamation League

605 Third Avenue

13

New York, NY 10158

(212) 885-7700 14

15

Attorneys for Anti-Defamation League

16

17

18

19

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83425737

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS

3

CURIAE ANTI-DEFAMATION LEAGUE

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-1 Filed 03/29/17 Page 1 of 18

1 LATHAM & WATKINS LLP

Robert W. Perrin (SBN 194485)

2

robert.perrin@lw.com

Julie R. F. Gerchik (SBN 237764)

3

julie.gerchik@lw.com

Jamie L. Sprague (SBN 287689)

4

jamie.sprague@lw.com

355 South Grand Avenue

5 Los Angeles, California 90071

Telephone: (213) 485-1234

6 Facsimile: (213) 891-8763

7 Attorneys for Amicus Curiae Anti-Defamation League
8

9

10 UNITED STATES DISTRICT COURT
11

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 CITY AND COUNTY OF SAN
15 FRANCISCO,

16

Plaintiffs

17 v.
18 DONALD J. TRUMP, et al.,
19
Defendants. 20

21

Case No. 17-cv-00485-WHO

The Honorable William H. Orrick

BRIEF OF AMICUS CURIAE ANTIDEFAMATION LEAGUE IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept.:

April 14, 2017 2:00 p.m. Courtroom 2

22

Date Filed: January 31, 2017

23

Trial Date: Not yet set

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83346430

BRIEF OF AMICUS CURIAE ANTI-DEFAMATION LEAGUE ISO PLAINTIFF’S MOTION FOR PI Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-1 Filed 03/29/17 Page 2 of 18

1 2 I. 3 II. 4 5 6 7 8 9 10 11 12
III. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS
INTRODUCTION ......................................................................................................... 1
ARGUMENT................................................................................................................. 2
A. A Primary Purpose of San Francisco’s “Sanctuary” Policies Is to Foster Community Policing and Enhance Public Safety. ..................................... 2
B. The Order Undermines Law Enforcement and Threatens Public Safety. ................................................................................................................ 4
1. The Order Suppresses the Reporting of Crimes and Compromises Community Safety. ........................................................... 4
2. Law Enforcement Agencies Have Confirmed That the Order Endangers Public Safety................................................................ 6
3. The Order Hinders Counter-Terrorism Efforts......................................... 8
C. The Order Directly and Disproportionately Harms Immigrant Communities and Leaves Them More Vulnerable to Hate Crimes. ..................... 9
CONCLUSION............................................................................................................ 12

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83346430

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i

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Case 3:17-cv-00485-WHO Document 67-1 Filed 03/29/17 Page 3 of 18

1 TABLE OF AUTHORITIES
2

Page(s) 3

CASES 4

5

Davila v. N. Reg’l Joint Police Bd., 979 F. Supp. 2d 612, 622-23 (W.D. Pa. 2013), vacated in part on reconsideration,

6

No. 13-00070, 2014 WL 3735631 (W.D. Pa. July 28, 2014) ................................................. 5

7 Galarza v. Szalczyk,

745 F.3d 634 (3d Cir. 2014) .................................................................................................. 5

8

Mendia v. Garcia,

9

768 F.3d 1009 (9th Cir. 2014)............................................................................................... 5

10 Winter v. Nat. Res. Def. Council, Inc.,

11

129 S. Ct. 365 (2008)............................................................................................................ 2

12

STATUTES

13 18 U.S.C. § 249 ........................................................................................................................ 11

14 S.F. Admin. Code § 12I.1 ........................................................................................................... 3

15

REGULATIONS

16 8 C.F.R. § 245.24 ....................................................................................................................... 6

17 Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)........................................................... 1, 4

18

OTHER AUTHORITIES

19 Charles Kurzman, Muslim-American Terrorism: Declining Further, TRIANGLE CENTER

20

ON TERRORISM AND HOMELAND SECURITY (Feb. 1, 2013),

https://kurzman.unc.edu/files/2011/06/Kurzman_Muslim-

21

American_Terrorism_February_1_2013.pdf ......................................................................... 9

22 David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and

Immigrant Communities After 9/11, LEGAL STUDIES RESEARCH PAPER SERIES (Jan.

23

22, 2009),

24

https://poseidon01.ssrn.com/delivery.php?ID=372020070024102112007084073072 0260110300780520920590060290891260110220820310800041131020610510160

25

0011610111808911700606508710300107206105105006707510208411300607905

6051000025115118078009081081114081068080084121110080127101016004014

26 007120067013017064&EXT=pdf......................................................................................... 8

27 Dylan Goforth & Kevin Canfield, Mayor, Police Chief Reiterate Stances in Wake of

President’s Executive Order on Immigration, THE FRONTIER (Jan. 27, 2017),

28

https://www.readfrontier.org/stories/mayor-police-chief-reiterate/ ........................................ 8

ATTORNEYS AT LAW LOS ANGELES

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ii

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1 Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)........................................................... 1, 4

2 Executive Order on So-Called “Sanctuary Cities” Puts All Communities at Risk, ADL

3

Says, ADL (Jan. 25, 2017) https://www.adl.org/news/press-releases/executiveorder-on-so-called-sanctuary-cities-puts-all-communities-at-risk-adl; Ric Anderson,

4

Q+A: ADL Leader says that as Trump surged, so did hate crimes, LAS VEGAS SUN

(Dec. 22, 2016), https://lasvegassun.com/news/2016/dec/22/qa-adl-leader-says-that-

5 as-trump-surged-so-did-hat ................................................................................................... 9

6 Eyder Peralta, You Say You’re An American, But What If You Had To Prove It Or Be

Deported?, NPR (Dec. 22, 2016, 12:29 PM), http://www.npr.org/sections/thetwo-

7

way/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-had-to-

8

prove-it-or-be-deported#foot1............................................................................................... 5

9 H.R. REP. NO. 111-86, at 5 (2009)............................................................................................. 11

10 Hate Crimes, ADL, https://www.adl.org/what-we-do/combat-hate/hate-crimes (last

visited Mar. 22, 2017)......................................................................................................... 11 11

USCIS, Number of I-918 Petitions for U Nonimmigrant Status (Victims of Certain

12

Criminal Activities and Family Members) by Fiscal Year, Quarter, and Case Status

13

2009-2016,

https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Stu

14

dies/Immigration%20Forms%20Data/Victims/I918u_visastatistics_fy2016_qtr4.pdf

(last visited Mar. 22, 2017) ................................................................................................... 6

15

Int’l Ass’n of Chiefs of Police, Police Chiefs Guide to Immigration Issues 28 (2007),

16

http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefsGuidetoImmigratio

17

n.pdf ................................................................................................................................... 10

18 Jason McGahan, Day Laborers Have Become an Easy Target for Anti-Immigrant Vigilantes, LA WEEKLY (Jan. 10, 2017), http://www.laweekly.com/news/day-

19

laborers-have-become-an-easy-target-for-anti-immigrant-vigilantes-7803494..................... 10

20 Jeanine Braud, Criselda Haro, Olga Tomchin, and Jeffrey Selbin, U Visas for

Immigrant Victims of Hate Crimes: A Practice Guide for Advocates (June 26,

21

2014), UC BERKELEY PUB. L. Research Paper No. 2459315,

22

https://ssrn.com/abstract=2459315 ...................................................................................... 10

23 Josh Sanburn, President Trump’s Immigration Order Could Harm the Fight Against Domestic Terror Some Experts Warn, TIME (Jan. 31, 2017)

24

http://time.com/4655229/president-trump-immigration-executive-order-muslims-

terrorism-police .................................................................................................................... 9 25

Kathleen McNerney, Chelsea Fights Trump’s Executive Order On Sanctuary Cities,

26

RADIO BOSTON (Feb. 16, 2017),

27

http://www.wbur.org/radioboston/2017/02/16/chelsea-sanctuary-lawsuit .............................. 8

28

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1 L.A. Cty. Comm’n on Human Relations, 2015 Hate Crime Report,

http://www.lahumanrelations.org/hatecrime/reports/2015%20Hate%20Crime%20R

2

eport%20PDF%20(1).pdf (last visited Mar. 22, 2017)......................................................... 10

3 Liz Robbins, New Weapon in Day Laborers’ Fight Against Wage Theft: A Smartphone

4

App, NEW YORK TIMES (Mar. 1, 2016)

https://www.nytimes.com/2016/03/02/nyregion/new-weapon-in-day-laborers-fight-

5 against-wage-theft-a-smartphone-app.html ......................................................................... 10

6 Matthew Scheider, Community Policing Nugget, COMMUNITY ORIENTED POLICING

SERVICES, U.S. DEPARTMENT OF JUSTICE,

7

https://cops.usdoj.gov/html/dispatch/february_2008/nugget.html (last visited Mar.

8

16, 2017) .............................................................................................................................. 4

9 Megan Casidy, Phoenix Police: Armed robber targets day laborers with promise of work, THE REPUBLIC (July 30, 2015),

10

http://www.azcentral.com/story/news/local/phoenix/2015/07/30/phoenix-police-

armed-robber-lobo-bandit-targets-day-laborers-promise-work/30918721............................ 10 11

12

Megan Wetmore, Law Enforcement Leaders Condemn ‘Sanctuary Cities’ Executive Order, NAT’L IMMIGRATION FORUM (Jan. 26, 2017),

13

http://immigrationforum.org/blog/law-enforcement-leaders-condemn-sanctuary-

cities-executive-order/........................................................................................................... 7

14 Michael Shively, et al., Understanding Trends in Hate Crimes Against Immigrants and

15

Hispanic-Americans: Final Report, NAT’L INST. OF JUSTICE (Dec. 27, 2013),

https://www.ncjrs.gov/pdffiles1/nij/grants/244755.pdf........................................................ 10 16

17

Sefano Camino, Giovanni Mastrobuoni, & Antonio Nicolo, Silence of the Innocents: Illegal Immigrants’ Underreporting of Crime and their Victimization, IZA (Oct.

18

2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2861091 ................................... 5

19 Stephen Lee, Policing Wage Theft in the Day Labor Market, 4 U.C. IRVINE L. REV. 655

(2014) ................................................................................................................................. 10

20

Tom Jackson, Police chiefs’ immigration task force outlines opposition to Trump

21

policy, WASHINGTON POST (Mar. 1, 2017),

22

https://www.washingtonpost.com/news/true-crime/wp/2017/03/01/police-chiefsimmigration-task-force-outlines-opposition-to-trump-

23

policy/?utm_term=.4a1b2456fec8 ......................................................................................... 7

24 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR

AM. PROGRESS (Jan. 26, 2017),

25

https://www.americanprogress.org/issues/immigration/......................................................... 5

26 U.S. Conf. of Mayors & Major Cities Chiefs Ass’n, Joint Statement Regarding

27

President Trump’s Executive Order, Enhancing Public Safety in the Interior of the United States,

28

https://www.majorcitieschiefs.com/pdf/news/mcca_mayors_pr_on_eo_12517.pdf

(last visited Mar. 22, 2017) ................................................................................................... 7

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1 USCIS, Victims of Criminal Activity: U Nonimmigrant Status,

https://www.uscis.gov/humanitarian/victims-human-trafficking-other-

2

crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-

3

nonimmigrant-status (last visited Mar. 8, 2017) .................................................................... 6

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Despite its title, President Donald J. Trump’s executive order on “sanctuary

3 jurisdictions,” “Enhancing Public Safety in the Interior of the United States” (Exec. Order

4 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Order”)), has the exact opposite effect. By

5 coercing local law enforcement to carry out federal immigration laws, the Order undermines the

6 critical trust and cooperation between law enforcement officials and immigrant and minority

7 communities. This trust is crucial to overall public safety, and central to the success of

8 community policing efforts.

9

The Anti-Defamation League’s (“ADL”) long experience advocating for and training law

10 enforcement on the implementation of hate crime laws and counter-terrorism efforts makes it

11 uniquely situated to understand the importance of community cooperation for effective policing.

12 (Motion for Leave to File Brief of Amicus Curiae Anti-Defamation League in Support of

13 Plaintiffs’ Motion for Preliminary Injunction, concurrently filed, at 1-2.) Indeed, such

14 cooperation is particularly important in minority communities, where socioeconomic conditions

15 – including immigration issues – can lead to a fear of engaging with law enforcement, thus

16 rendering some of America’s most vulnerable populations susceptible to criminal attacks and

17 especially hate crime.

18

Like many jurisdictions around the country, the City and County of San Francisco (“San

19 Francisco”) has enacted various “sanctuary” policies in order to ensure that an individual’s

20 citizenship status and any potential immigration issues do not interfere with that individual’s

21 ability to avail herself of local law enforcement’s protection and assistance. In addition to

22 conserving limited resources, these policies are designed to assist local law enforcement – i.e., to

23 encourage community members to come forward to report crimes to local police without the fear

24 that their immigration or citizenship status will subject them to legal action themselves. By

25 threatening to eliminate all federal funding to jurisdictions that may be deemed “sanctuary

26 jurisdictions,” the Order seeks to force San Francisco and jurisdictions across the country to

27 choose between compliance with the Order’s terms, or the immediate elimination of other critical

28

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1 public safety programs because federal funding will be cut for non-compliant jurisdictions. No

2 one should be forced to make that choice.

3

As San Francisco officials and law enforcement leaders around the nation have attested,

4 there is a demonstrable risk that – absent an injunction of the Order – undocumented immigrants

5 and other non-citizens are being dissuaded from aiding local enforcement efforts, including

6 efforts to combat terrorism and hate crime. Because of the Order, both undocumented and

7 documented immigrants justifiably fear that the police will report their immigration information

8 – or that of a family member or friend – to Immigration and Customs Enforcement (“ICE”),

9 thereby resulting in detention and/or deportation. As a consequence, many individuals are

10 avoiding contact with law enforcement, causing immediate irreparable harm to San Francisco

11 and communities across the country.

12

In the experience of the ADL and numerous law enforcement agencies that already have

13 spoken out, this break-down of trust and cooperation between police and minority communities

14 invariably leads to an increase in crime – particularly hate crime – rather than “enhanced public

15 safety.” Accordingly, ADL submits this amicus brief in support of San Francisco’s Motion for

16 Preliminary Injunction. (ECF No. 26). An injunction will prevent the immediate and irreparable

17 harm that will otherwise ensue because the Order undermines trust and cooperation between

18 immigrant communities and law enforcement. See Winter v. Nat. Res. Def. Council, Inc., 129 S.

19 Ct. 365, 376 (2008).

20 II. ARGUMENT

21

A. A Primary Purpose of San Francisco’s “Sanctuary” Policies Is to Foster

22

Community Policing and Enhance Public Safety.

23

The Order explicitly threatens to eliminate all forms of federal funding to so-called

24 “sanctuary jurisdictions.” Like numerous other communities in California, San Francisco will

25 likely be deemed a “sanctuary” jurisdiction because of its policies that limit local law

26 enforcement’s involvement in the implementation of federal immigration law.

27

In Chapters 12H and 12I.2 of its Administrative Code, San Francisco sets forth its

28 “sanctuary” polices. Broadly, these “sanctuary” polices prohibit law enforcement officials from

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1 providing advance notification to federal immigration officers regarding the date and time of

2 prisoner release; prohibit San Francisco employees from using its funds or resources to enforce

3 federal immigration law; prohibit detention of an individual who is otherwise eligible for release

4 on the basis of an ICE civil detainer request; and, prohibit the arrest or detention of an individual 5 solely based on alleged violations of immigration law.1

6

The Board of Supervisors enacted these laws to serve a critical local purpose: “to foster

7 respect and trust between law enforcement and residents, to protect limited local resources, to

8 encourage cooperation between residents and San Francisco officials, including especially law

9 enforcement and public health officers and employees, and to ensure community security, and

10 due process for all.” S.F. Admin. Code § 12I.1. In enacting these “sanctuary” policies, the

11 Board of Supervisors specifically noted the case of Pedro Figueroa, an immigrant father of an 8-

12 year-old U.S. citizen. After Mr. Figueroa reported his stolen vehicle to San Francisco’s police

13 department, police officers contacted ICE. Mr. Figueroa was detained and spent over two

14 months in an immigration detention facility and was subjected to deportation proceedings.

15 (Declaration of Sara J. Eisenberg in Support of Preliminary Injunction Motion, ECF No. 28

16 (“Eisenberg Decl.,” Ex. B at 3.) The Board found that “[c]ommunity cooperation with local law

17 enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime

18 victims – like Mr. Figueroa – and witnesses, local law enforcement’s ability to investigate and

19 prosecute crime, particularly in communities with large immigrant populations, will be seriously

20 compromised.” (Id.)

21

Thus the express goal of these “sanctuary” policies is to foster cooperation and

22 communication between law enforcement and the public. That cooperation and open

23 communication is a cornerstone of “community policing,” which is based on forging

24 partnerships between law enforcement and community members and groups. The U.S.

25 Department of Justice itself has affirmed that the value of community policing efforts depends in

26 the first instance on establishing trust between the community and law enforcement: “One

27

28 1

For a more fulsome summary of San Francisco’s “sanctuary” policies, see the

Preliminary Injunction Motion at 2-4.

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1 fundamental purpose of partnerships is to increase trust between law enforcement agencies and

2 the customers they serve. . . . Citizens who do not trust the police are less likely to report crime

3 and participate in developing solutions to problems. . . . Community policing encourages 4 agencies to build up accounts of trust and goodwill to call on when the inevitable crisis arises.”2

5 A critical element of developing this trust is creating an environment in which both victims and

6 witnesses are willing to come forward and actively participate in criminal investigations. San

7 Francisco’s “sanctuary” policies are designed to do just that, i.e., to encourage community

8 members – regardless of their immigration or citizenship status – to contact and cooperate with

9 local police without fear of deportation or other immigration consequences. (Eisenberg Decl.

10 Ex. B at 3.) Public safety in San Francisco (and elsewhere) depends on all community members

11 having this trust.

12

B. The Order Undermines Law Enforcement and Threatens Public Safety.

13

1. The Order Suppresses the Reporting of Crimes and Compromises

14

Community Safety.

By coercing local law enforcement agencies to enforce federal immigration law, the 15

Order drives a wedge between police officers and the residents they protect. Although the Order 16

is vague, it appears to coerce state and local governments to carry out ICE civil detainer requests, 17

and to prohibit state and local governments from restricting the release of information regarding 18

an individual’s immigration status. Order § 9(a), 9(b). Immigrants and members of 19

communities with large immigrant populations reasonably fear that their interaction with law 20

enforcement will lead to unwanted interaction with ICE. As a result, absent an injunction, 21

individuals who are undocumented, along with their families, will be unwilling to report crimes 22

and to assist in police investigations out of fear that contact with local police will lead to their 23

deportation. Nor will these effects be limited to those that are undocumented: U.S. citizens and 24

lawful residents who live among immigrant communities and/or belong to ethnic groups that 25

include many immigrants similarly will hesitate to report crimes or assist in the investigation of 26

27

2

Matthew Scheider, Community Policing Nugget, COMMUNITY ORIENTED POLICING

28 SERVS., U.S. DEP’T OF JUSTICE, https://cops.usdoj.gov/html/dispatch/february_2008/nugget.html

(last visited Mar. 16, 2017).

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1 crimes absent an injunction. Instead, they will fear mistakenly being treated as undocumented

2 and/or the consequences of drawing additional law enforcement attention to their friends and 3 neighbors.3

4

Research has confirmed that the fear of retribution following interaction with law

5 enforcement has serious practical implications for community safety. Empirical data and

6 analysis show that undocumented immigrants are significantly less likely to report a crime 7 committed against them.4 Under the Order, this natural reluctance is now being compounded

8 exponentially by a federal requirement that local law enforcement effectively act as immigration

9 agents. The effect is not a reduction in crime, but rather an increase in crime because the

10 necessary trust and cooperation between the police and local communities is reduced. For

11 example, one study completed earlier this year compared counties with a “sanctuary” policy –

12 i.e., counties that do not assist federal immigration enforcement officials by holding people in

13 custody beyond their release date – with non-sanctuary counties that were similar on a broad

14 range of demographic characteristics. The study concluded that “[t]here are, on average, 35.5

15 fewer crimes committed per 10,000 people in sanctuary counties compared to nonsanctuary 16 counties.”5

17 3

Fears of being treated as undocumented are well-founded. At times, ICE civil detainer

18 requests have been directed towards U.S. Citizens. See Mendia v. Garcia, 768 F.3d 1009, 1010

(9th Cir. 2014) (U.S. citizen spent two years in pre-trial detention as a result of the detainer); 19 Galarza v. Szalczyk, 745 F.3d 634, 636-38 (3d Cir. 2014) (U.S. citizen held in jail for three days

20 pursuant to erroneous detainer); Davila v. N. Reg’l Joint Police Bd., 979 F. Supp. 2d 612, 622-23 (W.D. Pa. 2013), vacated in part on reconsideration, No. 13-00070, 2014 WL 3735631 (W.D.

21 Pa. July 28, 2014) (U.S. citizen held in jail overnight pursuant to erroneous detainer); Eyder Peralta, You Say You’re An American, But What If You Had To Prove It Or Be Deported?, NPR
22 (Dec. 22, 2016, 12:29 PM), http://www.npr.org/sections/thetwo-

way/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-had-to-prove-it-or-be23 deported#foot1 (Data obtained through a Freedom of Information Act Request showed that from 24 October 2007 through July 2015, 693 detainers issued to local law enforcement agencies were
lifted or resolved, with the outcome “United States Citizen Interviewed.”).

25 4

See, e.g., Sefano Camino, Giovanni Mastrobuoni, & Antonio Nicolo, Silence of the

26 Innocents: Illegal Immigrants’ Underreporting of Crime and their Victimization, IZA (Oct. 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2861091.

27 5

Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR

28

AM. PROGRESS (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/ reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-the-economy.

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1

Recognizing this fact, the federal government itself previously acknowledged the

2 importance of encouraging undocumented victims to report criminal activity and cooperate in the

3 prosecution of crimes. For example, 8 C.F.R. § 245.24 provides an incentive for undocumented

4 immigrants who are victims of certain enumerated crimes to report those crimes, and thereby

5 become eligible to apply for lawful immigration status. The United States Citizenship and

6 Immigration Services has said that the purpose of this provision is to “strengthen the ability of

7 law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, 8 trafficking of aliens and other crimes, while also protecting victims of crimes.”6 This is an open

9 acknowledgement by the federal government that the participation of immigrant communities in 10 law enforcement practices is essential to public safety.7

11

2. Law Enforcement Agencies Have Confirmed That the Order

12

Endangers Public Safety.

The Order reduces the reporting of crimes and the safety of San Francisco residents. As 13

San Francisco’s Police Department Commander has confirmed, the willingness of community 14

members to report crimes and serve as witnesses is essential to effective law enforcement. 15

(Declaration of Commander Peter Walsh in Support of Preliminary Injunction Motion, ECF No. 16

25 ¶ 6.) The Order directly impedes the ability of law enforcement to prevent and investigate 17

crimes in San Francisco because it limits the cooperation they receive from a large section of 18

residents. (Id ¶ 7-8.) Absent an injunction, the resulting negative impact on public safety will 19

not be limited to already-underserved immigrant communities but all communities in San 20

Francisco and across the nation, and will compromise the police’s ability to investigate and 21

prosecute crime. 22

23 6

USCIS, Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov

24

/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-unonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status (last visited Mar. 8, 2017).

7
25

8 C.F.R. § 245.24. U.S. Citizenship and Immigration Services is reporting a backlog of

over 150,000 pending applications. See USCIS, Number of I-918 Petitions for U Nonimmigrant

26 Status (Victims of Certain Criminal Activities and Family Members) by Fiscal Year, Quarter,

and Case Status 2009-2016, 27 https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigrat

28

ion%20Forms%20Data/Victims/I918u_visastatistics_fy2016_qtr4.pdf (last visited Mar. 22, 2017).

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1

These conclusions of San Francisco law enforcement officers are echoed by the broader

2 law enforcement community. The Police Foundation, the International Association of Chiefs of

3 Police, the Major Cities Chiefs Association, and the Law Enforcement Immigration Task Force

4 all have expressed grave concern that deputizing local law enforcement officers to implement

5 immigration law undermines the immigrant community’s trust in and cooperation with local law

6 enforcement.8 The Major Cities Chiefs Association wrote in a statement:

7

Cities that aim to build trusting and supportive relations with

immigrant communities should not be punished because this is

8

essential to reducing crime and helping victims, both stated goals

of the new Administration in Washington. We must be able to

9

continue to protect the safety of all of our residents while ensuring

10

that local law enforcement is focused on community policing. . . .

Local police departments work hard to build and preserve trust

11

with all of the communities they serve, including immigrant

communities. Immigrants residing in our cities must be able to

12

trust the police and all of city government.9

13

Similarly, many local law enforcement leaders in different states have spoken out against

14 the Order and have specifically cited its detrimental effect on crime reporting:

15

• Lake County, Illinois Sheriff Mark Curran: “Community policing is based on

16

having relationships with people that live in those minority communities.”10

17

• Marshalltown, Iowa Police Chief Mike Tupper: “This [Order] is not going to help

18

us build the relationships in our community that most people expect us to have.”11

19

20

21 8

See, e.g., Tom Jackson, Police chiefs’ immigration task force outlines opposition to

22 Trump policy, WASHINGTON POST (Mar. 1, 2017), https://www.washingtonpost.com/news/truecrime/wp/2017/03/01/police-chiefs-immigration-task-force-outlines-opposition-to-trump-

23 policy/?utm_term=.4a1b2456fec8.

9
24

U.S. Conf. of Mayors & Major Cities Chiefs Ass’n, Joint Statement Regarding President

Trump’s Executive Order, Enhancing Public Safety in the Interior of the United States,

25 https://www.majorcitieschiefs.com/pdf/news/mcca_mayors_pr_on_eo_12517.pdf (last visited

Mar. 22, 2017) (emphasis added).

26 10

Magen Wetmore, Law Enforcement Leaders Condemn ‘Sanctuary Cities’ Executive

27 Order, NAT’L IMMIGRATION FORUM (Jan. 26, 2017), http://immigrationforum.org/blog/law-

enforcement-leaders-condemn-sanctuary-cities-executive-order.

28 11

Id.

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1

• Chelsea, Massachusetts Police Chief Brian Kyes: “These individuals can be

2

targeted for committing crimes and we want these people to trust the police to

3

report crimes. If they’re in fear that we’re gonna enforce locally, civil federal

4

immigration law, we won’t have that trust.”12

5

• Tulsa, Oklahoma Police Chief Chuck Jordan: “I don’t want anyone to be a crime

6

victim in this city and be afraid to call the police.”13

7

Absent an injunction, the harms that will occur from the breakdown of community

8 policing will be immediate and irreparable. Once local police effectively become federal

9 immigration agents, it will be difficult – if not impossible – for them to rebuild the bonds of trust

10 and cooperation with immigrant communities.

11

3. The Order Hinders Counter-Terrorism Efforts.

12

In addition to hindering local police and law enforcement activities, the Order

13 immediately and irreparably harms national counter-terrorism efforts. Engagement with the

14 community is essential for effective homeland security. Since September 11th, law enforcement

15 agencies actively have sought to develop relationships with Arab, Middle Eastern, Muslim and

16 South Asian (AMEMSA) communities, which have been both targets in need of protection and

17 potential sources of information. These partnerships are analogous to community policing 18 efforts, and have led to numerous terrorism prosecutions.14 Tips from Muslim-Americans have 19 helped thwart 27% of 126 known potential domestic terrorist attacks since 2001.15 For example,

20

21 12 Kathleen McNerney, Chelsea Fights Trump’s Executive Order On Sanctuary Cities,

22 RADIO BOSTON (Feb. 16, 2017), http://www.wbur.org/radioboston/2017/02/16/ chelsea-sanctuary-lawsuit.
23 13 Dylan Goforth & Kevin Canfield, Mayor, Police Chief Reiterate Stances in Wake of President’s Executive Order on Immigration, THE FRONTIER (Jan. 27, 2017),
24 https://www.readfrontier.org/stories/mayor-police-chief-reiterate/.

14
25

David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant

Communities After 9/11, LEGAL STUDIES RESEARCH PAPER SERIES (Jan. 22, 2009),

26 https://poseidon01.ssrn.com/delivery.php?ID=3720200700241021120070840730720260110300 780520920590060290891260110220820310800041131020610510160001161011180891170060

27 650871030010720610510500670751020841130060790560510000251151180780090810811140 81068080084121110080127101016004014007120067013017064&EXT=pdf.

28 15 Charles Kurzman, Muslim-American Terrorism: Declining Further, TRIANGLE CTR. ON TERRORISM AND HOMELAND SECURITY (Feb. 1, 2013),

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1 an imam in Queens, New York provided tips that led to the arrest of Najibullah Zazi, who was 2 sentenced to life in prison in 2010 for conspiring to bomb the New York subway system.16

3

For this reason, Homeland Security experts have spoken out against measures that create

4 a loss of trust and cooperation between law enforcement and the community. For example, John

5 Cohen, who worked for the Office of National Intelligence under President Bush and the

6 Department of Homeland Security under President Obama has said about another anti-

7 immigration measure, “[i]t may drive a wedge between law enforcement authorities and

8 members of the Arab-American or Muslim-American community at the very time we need

9 cooperation and partnership. It’s certainly going to impact the relationship with federal

10 authorities as they seek to reach out to Muslim community leaders in an effort to have them work 11 together.”17 The Order will immediately and irreparably destroy the relationships that law

12 enforcement has built with immigrant communities, removing an important layer of protection

13 against terrorist attacks.

14

C. The Order Directly and Disproportionately Harms Immigrant Communities

15

and Leaves Them More Vulnerable to Hate Crimes.

16

By reducing the trust between law enforcement and immigrant and minority

17 communities, the Order leaves a large segment of the population particularly vulnerable to

18 crimes targeting immigrants. ADL has monitored and exposed the increasingly hateful anti-

19 immigrant, anti-Latino, and anti-Muslim rhetoric that has surrounded the national debate on 20 immigration reform.18 Studies have shown that hate crimes have been on the rise in recent

21

22 https://kurzman.unc.edu/files/2011/06/Kurzman_Muslim-

23 American_Terrorism_February_1_2013.pdf.

16

Id.

24 17 Josh Sanburn, President Trump’s Immigration Order Could Harm the Fight Against

25

Domestic Terror Some Experts Warn, TIME (Jan. 31, 2017) http://time.com/4655229/presidenttrump-immigration-executive-order-muslims-terrorism-police.

26 18 Executive Order on So-Called “Sanctuary Cities” Puts All Communities at Risk, ADL

Says, ADL (Jan. 25, 2017) https://www.adl.org/news/press-releases/executive-order-on-so27 called-sanctuary-cities-puts-all-communities-at-risk-adl; Ric Anderson, Q+A: ADL Leader says

28

that as Trump surged, so did hate crimes, LAS VEGAS SUN (Dec. 22, 2016), https://lasvegassun.com/news/2016/dec/22/qa-adl-leader-says-that-as-trump-surged-so-did-hat.

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83346430

BRIEF OF AMICUS CURIAE ANTI-DEFAMATION

9

LEAGUE ISO PLAINTIFF’S MOTION FOR PI

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-1 Filed 03/29/17 Page 16 of 18

1 years.19 People within immigrant populations are especially vulnerable to hate crime.20 Indeed,

2 one study found that “[i]n a national survey of 464 immigration service providers conducted in

3 2012 [], advocates reported that 73% of hate crime victims they had served were targeted on the 4 basis of immigration status/nationality.”21 Documented and undocumented immigrants, as well

5 as members of minority communities that may be perceived as immigrants, are in danger of

6 increased rates of hate crimes.

7

People within immigrant communities also are especially susceptible to wage theft and

8 other employer abuses.22 Day laborers in particular are easy targets for unscrupulous employers,

9 who hire them and then disappear before paying their day’s wages.23 Workers who are robbed of

10 their wages are often afraid to report the theft because of their immigration status. As Professor

11 Stephen Lee of the University of California, Irvine School of Law stated, “[D]istrust of the

12 police effectively neutralizes the potential of wage theft statutes when enforced against 13 employers who hire unauthorized immigrant workers.”24

14 19

See, e.g., L.A. Cty. Comm’n on Human Relations, 2015 Hate Crime Report,

15 http://www.lahumanrelations.org/hatecrime/reports/2015%20Hate%20Crime%20Report%20PD

F%20(1).pdf (last visited Mar. 22, 2017) (finding that crimes targeting Latino/as jumped 69% in

16 Los Angeles County in 2015); Michael Shively, et al., Understanding Trends in Hate Crimes

Against Immigrants and Hispanic-Americans: Final Report, NAT’L INST. OF JUSTICE (Dec. 27,

17 2013), https://www.ncjrs.gov/pdffiles1/nij/grants/244755.pdf (“From 2010 to 2011, there was a

statistically significant increase in the prevalence of harassment or bullying targeting Hispanics

18 because of their ethnicity.”).

19

20 Int’l Ass’n of Chiefs of Police, Police Chiefs Guide to Immigration Issues 28 (2007), http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefsGuidetoImmigration.pdf.

20 21

Jeanine Braud, Criselda Haro, Olga Tomchin, & Jeffrey Selbin, U Visas for Immigrant

21 Victims of Hate Crimes: A Practice Guide for Advocates (June 26, 2014), U.C. BERKELEY PUB. L. Research Paper No. 2459315, https://ssrn.com/abstract=2459315.

22 22 Liz Robbins, New Weapon in Day Laborers’ Fight Against Wage Theft: A Smartphone App, NEW YORK TIMES (Mar. 1, 2016) https://www.nytimes.com/2016/03/02/nyregion/new-
23 weapon-in-day-laborers-fight-against-wage-theft-a-smartphone-app.html.

24 23 Stephen Lee, Policing Wage Theft in the Day Labor Market, 4 U.C. IRVINE L. REV. 655 (2014).
25 24 Id. at 665. Day laborers are also especially vulnerable to robberies and anti-immigration
26 vigilantes. See, e.g., Jason McGahan, Day Laborers Have Become an Easy Target for AntiImmigrant Vigilantes, LA WEEKLY (Jan. 10, 2017), http://www.laweekly.com/news/day-
27 laborers-have-become-an-easy-target-for-anti-immigrant-vigilantes-7803494; Megan Cassidy, Phoenix Police: Armed robber targets day laborers with promise of work, THE REPUBLIC (July
28 30, 2015), http://www.azcentral.com/story/news/local/phoenix/2015/07/30/phoenix-policearmed-robber-lobo-bandit-targets-day-laborers-promise-work/30918721.

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83346430

BRIEF OF AMICUS CURIAE ANTI-DEFAMATION

10

LEAGUE ISO PLAINTIFF’S MOTION FOR PI

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-1 Filed 03/29/17 Page 17 of 18

1

In this climate, it is critically important that San Francisco law enforcement officers are

2 able to effectively investigate and prosecute crime, particularly hate crimes. Absent an

3 injunction, victims and witnesses will hesitate to contact law enforcement when doing so may

4 subject them to possible detention or deportation. Combined with the current atmosphere

5 surrounding the immigration debate, this lack of community engagement will leave vast portions

6 of the population especially vulnerable to hate crimes and other criminal attacks. Offenders will

7 specifically target victims in immigrant communities without fear of prosecution. Indeed, unless

8 the Order’s enforcement is enjoined, it will effectively create an underclass of people –

9 primarily, although by no means exclusively, in the Latino community – who have no

10 meaningful access to police services. Absent an injunction, these effects of the Order are

11 immediate and irreparable – law enforcement officials around the nation have spent countless

12 hours building relationships with immigrant communities that now are being threatened or

13 destroyed.

14

The federal government and 45 states plus the District of Columbia have demonstrated

15 their commitment to protecting minority groups by enacting hate crime legislation modeled after 16 a version drafted by the ADL.25 The landmark Matthew Shepard and James Byrd, Jr. Hate

17 Crimes Prevention Act of 2009 (“Hate Crimes Prevention Act”) created a new federal law that

18 criminalized willfully causing bodily injury when the crime was committed because of the actual

19 or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or

20 disability of the victim. 18 U.S.C. § 249. The purpose of the Hate Crime Prevention Act is to

21 decrease the rate of hate crimes, which “are disturbingly prevalent and pose a significant threat to 22 the full participation of all Americans in our democratic society.”26 When passing the bill, the 23 House of Representatives noted that “violent hate crimes are significantly under-reported.”27

24 Absent an injunction, this Congressional commitment to protecting the most vulnerable

25

26 25 Hate Crimes, ADL, https://www.adl.org/what-we-do/combat-hate/hate-crimes (last

visited Mar. 22, 2017). 27
26 H.R. REP. NO. 111-86, at 5 (2009).

28 27

Id.

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83346430

BRIEF OF AMICUS CURIAE ANTI-DEFAMATION

11

LEAGUE ISO PLAINTIFF’S MOTION FOR PI

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-1 Filed 03/29/17 Page 18 of 18

1 communities in our society will be directly undermined, and irreparably harmed, by enforcement

2 of the Order as framed.

3 III. CONCLUSION

4

For the foregoing reasons, the Order will inflict irreparable harm if its enforcement is not

5 enjoined, and the public interest dictates entry of a preliminary injunction.

6

7 DATED: March 29, 2017

LATHAM & WATKINS LLP

8

By /s/ Robert W. Perrin

9

Robert W. Perrin

10

Julie R. F. Gerchik Jamie L. Sprague

11

355 S. Grand Ave.

Los Angeles, CA 90071

12

(213) 485-1234

13

ANTI-DEFAMATION LEAGUE

14

Steven M. Freeman

15

Lauren A. Jones

Michelle N. Deutchman

16

Anti-Defamation League

605 Third Avenue

17

New York, NY 10158

(212) 885-7700 18

19

Attorneys for Anti-Defamation League

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\83346430

BRIEF OF AMICUS CURIAE ANTI-DEFAMATION

12

LEAGUE ISO PLAINTIFF’S MOTION FOR PI

Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-2 Filed 03/29/17 Page 1 of 2

1 LATHAM & WATKINS LLP

Robert W. Perrin (SBN 194485)

2

robert.perrin@lw.com

Julie R. F. Gerchik (SBN 237764)

3

julie.gerchik@lw.com

Jamie L. Sprague (SBN 287689)

4

jamie.sprague@lw.com

355 South Grand Avenue

5 Los Angeles, California 90071

Telephone: (213) 485-1234

6 Facsimile: (213) 891-8763

7 Attorneys for Amicus Curiae
8 Anti-Defamation League

9

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION
14

15 CITY AND COUNTY OF SAN
FRANCISCO, 16

17

Plaintiffs

18

v.

19 DONALD J. TRUMP, et al.,

20

Defendants.

21

.

22

23

24

25

Case No. 17-cv-00485-WHO

The Honorable William H. Orrick

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE ANTIDEFAMATION LEAGUE IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept.:

April 14, 2017 2:00 p.m. Courtroom 2

Date Filed: January 31, 2017

Trial Date: Not yet set

26

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\84145134

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF ADL
Case No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 67-2 Filed 03/29/17 Page 2 of 2

1

Amicus Curiae Anti-Defamation League filed a Motion for Leave to File Brief in Support

2 of Plaintiff’s Motion for Preliminary Injunction (the “Motion”) on March 29, 2017. After

3 considering the papers filed in support of the Motion and other papers filed in this action, the

4 Court hereby GRANTS the Motion and ORDERS that the brief submitted by the Anti-

5 Defamation League be filed.

6

7

IT IS SO ORDERED.

8

9 Dated: ______________________________
10
11

____________________________________ HON. WILLIAM H. ORRICK United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

US-DOCS\84145134

[PROPOSED] ORDER GRANTING MOTION FOR
1 LEAVE TO FILE AMICUS CURIAE BRIEF OF ADL
Case No. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 68 Filed 03/29/17 Page 1 of 5

1 KYRA KAZANTZIS (154612) (kyrak@lawfoundation.org) DIANA CASTILLO (237281) (dianac@lawfoundation.org)
2 NADIA AZIZ (252966) (nadia.aziz@lawfoundation.org) LAW FOUNDATION OF SILICON VALLEY
3 152 N. 3rd Street, #3 San Jose, CA 95112
4 Telephone: (408) 280-2401 Facsimile: (408) 293-0106
5 MAUREEN P. ALGER (208522) (malger@cooley.com)
6 MONIQUE R. SHERMAN (227494) (msherman@cooley.com) MATTHEW EZER (292779) (mezer@cooley.com)
7 JESSIE A. R. SIMPSON LAGOY (305257) (jsimpsonlagoy@cooley.com) SAMANTHA KIRBY (307917) (skirby@cooley.com)
8 COOLEY LLP 3175 Hanover Street
9 Palo Alto, CA 94304-1130 Telephone: (650) 843-5000
10 Facsimile: (650) 849-7400

11 Attorneys for Amici Curiae

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15

16 CITY AND COUNTY OF SAN FRANCISCO,
17 Plaintiff,
18 v.
19 DONALD J. TRUMP, President of the United
20 States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States
21 Department of Homeland Security, JEFFERSON B. SESSIONS, Attorney
22 General of the United States, DOES 1-100,

Case No. 3:17-cv-00485-WHO

MOTION OF NONPROFIT ASSOCIATIONS FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept. Judge:

April 14, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: January 31, 2017

23

Defendants.

Trial Date: Not Yet Set

24

25

26

27

28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

NONPROFIT ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE (CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68 Filed 03/29/17 Page 2 of 5

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE THAT pursuant to the Court’s Order on March 21, 2017 (Dkt. 31),

3 the nonprofit associations listed below (collectively “amici”), respectfully move the Court for leave

4 to file the accompanying brief of amici curiae. The brief supports Plaintiff’s Motion for Preliminary

5 Injunction. The proposed brief is appended as Exhibit 1 to this motion.

6 I.

LEGAL STANDARD

7

District courts have discretion to permit third parties to participate in an action as amici curiae,

8 and such discretion is generally exercised liberally, as “[t]here are no strict prerequisites that must be

9 established prior to qualifying for amicus status.” Woodfin Suite Hotels, LLC v. City of Emeryville, No.

10 C 06-1254 SBA, 2007 WL 81911, at *3 (N.D. Cal. Jan. 9, 2007) (quoting In re Roxford Foods Litig., 790

11 F. Supp. 987, 997 (E.D. Cal. 1991)). A third party must merely “make a showing that [its] participation

12 is useful or otherwise desirable to the court.” Id. The Court set out specific guidelines for parties

13 seeking leave to file an amicus brief in this case, which include setting forth a description of the

14 movants’ interests, and the reasons why an amicus brief is desirable and relevant to the disposition of the

15 issues. (Dkt. 31.) The nonprofit associations filing this motion offer a unique and important perspective

16 on the issues before the Court, and for the reasons stated below, request leave to file a brief as amici

17 curiae.

18 II. IDENTITY OF PROPOSED AMICI AND STATEMENT OF INTEREST

19

Proposed amici are associations of community-based nonprofit organizations in the health

20 and human services sector. Members of the amici associations provide a range of services including

21 homelessness intervention, nutrition support, emergency assistance, senior services, medical care,

22 mental health care, support for survivors of domestic violence, and support for at-risk youth. Amici

23 and their members rely on federal funds passed through to them by local governments, local

24 government funding, and private funding, all of which is placed in jeopardy by the Executive Order

25 at issue in this case. Proposed amici submit this motion and accompanying brief to emphasize the

26 severe and harmful impact of the Executive Order on their member organizations, their members’

27 programs, and the communities their members serve.

28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

NONPROFIT ASSOCIATIONS’ MOTION FOR

1.

LEAVE TO FILE BRIEF AS AMICI CURIAE

(CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68 Filed 03/29/17 Page 3 of 5

1

Proposed amici include the following associations of nonprofit organizations:

2

API Council of San Francisco

3

California Association of Nonprofits

4

Coalition of Agencies Serving the Elderly

5

Council of Community Housing Organizations

6

HIV/AIDS Provider Network

7

Homeless Emergency Service Providers Association

8

Long Term Care Coordinating Council

9

San Francisco Human Services Network

10

San Francisco Interfaith Council

11

San Francisco Latino Parity and Equity Coalition

12

San Francisco Mental Health Contractors Association

13

Silicon Valley Council of Nonprofits; and

14

Supportive Housing Providers Network.

15 Descriptions of proposed amici are attached hereto as Appendix A.

16 III. AMICI’S BRIEF IS DESIRABLE AND RELEVANT TO THE DISPOSITION OF THE ISSUES BEFORE

17

THE COURT.

18

On January 25, 2017, the President of the United States signed an Executive Order that

19 empowers the federal government to withhold federal funds from jurisdictions deemed “sanctuary”

20 jurisdictions. Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). The

21 Executive Order has created a cloud of financial uncertainty so overwhelming that it has impaired

22 local governments’ and proposed amici’s ability to budget. Plaintiff City and County of San

23 Francisco filed a motion for a nationwide preliminary injunction on March 8, 2017, seeking to

24 prohibit Defendants from enforcing Section 9(a) of the Executive Order and 8 U.S.C. Section 1373,

25 and in the alternative, from “taking any action under the Executive Order to declare San Francisco a

26 ‘sanctuary jurisdiction’ that is ineligible for federal funds.” (Dkt. 21 at 1.) Proposed amici share an

27 interest with the Plaintiff in ensuring continued and consistent availability of public funds to provide

28 essential health and human services.

COOLEY LLP

ATTORNEYS AT LAW

2.

PALO ALTO

NONPROFIT ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE (CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68 Filed 03/29/17 Page 4 of 5

1

The brief of proposed amici is desirable because it will assist the Court by providing

2 important information about the harmful impact of the Executive Order on nonprofit organizations

3 and their clients. The Executive Order threatens both nonprofits and the communities they serve.

4 Nonprofits rely on federal funds passed through to them by San Francisco and other local

5 governments. That funding is now in jeopardy, and nonprofits now face the untenable situation of

6 having to cut vital services just when the demand for those services will be on the rise. This is not

7 harmful only to the nonprofit organizations themselves, but also to those in the community who

8 depend on the services the nonprofits provide, and who are at risk of losing life-sustaining and life-

9 saving services. The brief of proposed amici addresses the current harms that nonprofits are

10 experiencing and the immediate steps they are taking to cope with the uncertainty and chaos

11 surrounding the availability of funds due to the Executive Order.

12

Proposed amici also provide unique and critical insight into the effects of the Executive

13 Order on the community, including the fear of accessing services it has already caused among many

14 in the immigrant community. The brief of proposed amici provides the Court with specific examples

15 of the Executive Order’s effect on underserved members of the community, such as the immigrant,

16 elderly, and homeless populations. Proposed amici’s member organizations are the sole source of

17 protection and hope for many of their constituents, and are deeply concerned about their ability to

18 provide life-saving and essential services to the most vulnerable members of the community in light

19 of the Executive Order. The effects of the Executive Order on the community are relevant to the

20 disposition of the Motion for Preliminary Injunction, and proposed amici, as associations of

21 nonprofit organizations that have direct contact every day with the most vulnerable members of our

22 society, are well-positioned to provide a unique perspective to this Court.

23 IV. CONCLUSION

24

Proposed amici have a concrete interest in the outcome of this case. Their brief presents the

25 important perspective of nonprofit organizations that work with underserved members of the

26 community directly affected by the Executive Order. This perspective is both desirable and relevant

27 / / /

28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

/ / /

NONPROFIT ASSOCIATIONS’ MOTION FOR

3.

LEAVE TO FILE BRIEF AS AMICI CURIAE

(CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68 Filed 03/29/17 Page 5 of 5

1 to the disposition of the issues before the Court. For these reasons, proposed amici respectfully

2 request that the Court grant their Motion for Leave to File a Brief as Amici Curiae in Support of

3 Plaintiff City and County of San Francisco’s Motion for Preliminary Injunction.

4 Dated: March 29, 2017 5

COOLEY LLP & LAW FOUNDATION OF SILICON VALLEY

6

/s/ Maureen P. Alger 7

8

MAUREEN P. ALGER KYRA KAZANTZIS

9

MONIQUE R. SHERMAN DIANA CASTILLO

10

NADIA AZIZ MATTHEW EZER

11

JESSIE A. R. SIMPSON LAGOY SAMANTHA KIRBY

12

Attorneys for Amici Curiae

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

NONPROFIT ASSOCIATIONS’ MOTION FOR

4.

LEAVE TO FILE BRIEF AS AMICI CURIAE

(CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-1 Filed 03/29/17 Page 1 of 16

1 KYRA KAZANTZIS (154612) (kyrak@lawfoundation.org) DIANA CASTILLO (237281) (dianac@lawfoundation.org)
2 NADIA AZIZ (252966) (nadia.aziz@lawfoundation.org) LAW FOUNDATION OF SILICON VALLEY
3 152 N. 3rd Street, #3 San Jose, CA 95112
4 Telephone: (408) 280-2401 Facsimile: (408) 293-0106
5 MAUREEN P. ALGER (208522) (malger@cooley.com)
6 MONIQUE R. SHERMAN (227494) (msherman@cooley.com) MATTHEW EZER (292779) (mezer@cooley.com)
7 JESSIE A. R. SIMPSON LAGOY (305257) (jsimpsonlagoy@cooley.com) SAMANTHA KIRBY (307917) (skirby@cooley.com)
8 COOLEY LLP 3175 Hanover Street
9 Palo Alto, CA 94304-1130 Telephone: (650) 843-5000
10 Facsimile: (650) 849-7400

11 Attorneys for Amici Curiae
12 UNITED STATES DISTRICT COURT
13 NORTHERN DISTRICT OF CALIFORNIA
14 SAN FRANCISCO DIVISION
15

16 CITY AND COUNTY OF SAN
17 FRANCISCO,

18

Plaintiff,

19

v.

Case No. 3:17-cv-00485-WHO BRIEF OF NONPROFIT ASSOCIATIONS AS AMICI CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

20 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,
21 JOHN F. KELLY, Secretary of United States Department of Homeland Security,
22 JEFFERSON B. SESSIONS, Attorney General of the United States, DOES 1-100,
23 Defendants.
24

Date: Time: Dept. Judge:

April 14, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: January 31, 2017

Trial Date: Not Yet Set

25

26

27

28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

BRIEF OF AMICI CURIAE NONPROFITS ISO PLTF’S MOTION FOR PRELIMINARY INJUNCTION (CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-1 Filed 03/29/17 Page 2 of 16

1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14 15 III. 16 17 18 19 20 21 22 23 24 25 26 27 28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

TABLE OF CONTENTS
Page
SUMMARY OF ARGUMENT & INTEREST OF AMICI CURIAE...................................... 1
ARGUMENT ........................................................................................................................... 2
A. LEGAL CONTEXT..................................................................................................... 2
B. THE EXECUTIVE ORDER CAUSES IRREPARABLE HARM TO NONPROFIT ORGANIZATIONS AND THOSE THEY SERVE BECAUSE OF THE SUBSTANTIAL BUDGETARY UNCERTAINTY IT CREATES............. 2
1. NONPROFITS RELY ON FEDERAL AND LOCAL FUNDING THAT IS NOW IN JEOPARDY ..................................................................... 3
2. NONPROFITS ARE CONSIDERING CUTTING SERVICES DUE TO THE SEVERE BUDGET UNCERTAINTY CAUSED BY THE EXECUTIVE ORDER..................................................................................... 5
3. NONPROFITS WILL FACE MORE DEMAND FOR THEIR SERVICES AND FOR NEW SERVICES AS GOVERNMENT SERVICES ARE CUT..................................................................................... 7
C. THE EXECUTIVE ORDER CAUSES FEAR IN THE COMMUNITY ABOUT ACCESSING PUBLIC SERVICES, WHICH HARMS THE PUBLIC INTEREST ................................................................................................... 8
CONCLUSION...................................................................................................................... 12

i.

BRIEF OF AMICI CURIAE NONPROFITS ISO PLTF’S MOTION FOR PRELIMINARY INJUNCTION

(CASE NO.: 3:17-CV-00485-WHO)

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1

TABLE OF AUTHORITIES

2 3 Cases

Page

4 Angotti v. Rexam, Inc.,

5

No. C 05-5264 CW, 2006 WL 1646135 (N.D. Cal. June 14, 2006)................................................2

6

California Ass’n of Health Care Facilities v. Dep’t of Health Servs., No. Civ. S-90-1086 RAR GGH, 1990 WL 282598 (E.D. Cal. Oct. 1, 1990)..................................2

7 League of United Latin Am. Citizens v. Wilson,

8

Nos. 94-7569 MRP, 1998 WL 141325 (C.D. Cal. Mar. 13, 1998)..................................................9

9 Susan B. Anthony List v. Driehaus,

10

134 S. Ct. 2334 (2014) .....................................................................................................................2

11

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).............................................................................................................................2

12 Statutes and Orders
13 8 U.S.C. § 1373......................................................................................................................................1
14 Ariz. Rev. Stat. Ann. § 11-1051 (2010) .................................................................................................9
15 California Proposition 187 §§ 6-8 (1994) ..............................................................................................9
16
17 Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)........................................................................1

18 Other Authorities

19

2015 State of the Nonprofit Sector Survey, NONPROFIT FINANCE FUND (May 2015) ...................................................................................... 3-4

20 A Dozen Common Sense Solutions to Government-Nonprofit Contracting Problems,

21

NAT’L COUNCIL OF NONPROFITS (Dec. 5, 2013) ..............................................................................6

22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

Marc L. Berk & Claudia L. Schur, The Effect of Fear on Access to Care Among Undocumented Latino Immigrants, 3 J. IMMIGR. HEALTH 151 (2001) .....................................................................................................9
John Brothers, Nonprofits Begin Coping with Government Shutdown, NONPROFIT QUARTERLY (Oct. 2, 2013) ...........................................................................................8
City and County of San Francisco, Office of the Controller, SFOpenBook, http://openbook.sfgov.org/ (last visited Mar. 21, 2017)...........................................4

ii.

BRIEF OF AMICI CURIAE NONPROFITS ISO PLTF’S MOTION FOR PRELIMINARY INJUNCTION

(CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-1 Filed 03/29/17 Page 4 of 16

1

TABLE OF AUTHORITIES

2

(continued)

Page

3 City of San Francisco, Office of Controller,

4

FY 2016-17 Six-Month Budget Status Report ..................................................................................4

5

Tim Delaney & David L. Thompson, Nonprofits Need to Stand Together to Push for Smart Public Policies, CHRON. OF

6

PHILANTHROPY (Jan. 4, 2017)..........................................................................................................7

7 Emily Green and Kevin Fagan,

SF Mayor Lee Stands Up to Trump, Says City Remains a Sanctuary,

8

SAN FRANCISCO CHRONICLE (Jan. 25, 2017) .................................................................................10

9 Bill Ong Hing,

10

Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy, 2 UC Irvine L. Rev. 247 (2012)..............................................11

11 Annie Lowrey,

12

Trump’s Anti-Immigrant Policies Are Scaring Eligible Families Away from the

Saftey Net, THE ATLANTIC (Mar. 24, 2017) .....................................................................................9 13

Chuck McLean & Carol Brouwer,

14

The Effect of the Economy on the Nonprofit Sector: October 2008-February

15

2009, GUIDESTAR (2009) .................................................................................................................6

16

Emily Navarro, Government Funding for Charities: When It Declines, the Charities Lose Twice, CHARITY NAVIGATOR (May 1, 2005)...........................................................................7

17 San Francisco Human Services Network,

18

San Francisco’s Nonprofit Human Service Providers, SAN FRANCISCO URBAN

19

INST. (2002)......................................................................................................................................3

20

Barbara Starfield et al., Contribution of Primary Care to Health Systems and Health, 83(3) MILBANK QUARTERLY 457 (2005) .......................................................................................11

21 Russell B. Toomey et al.,

22

Impact of Arizona’s SB 1070 Immigration Law on Utilization of Health Care and

Public Assistance Among Mexican-Origin Adolescent Mothers and Their Mother

23

Figures, 104 Am. J. Pub. Health S1, S31 (2014).............................................................................9

24 Toward Common Sense Contracting,

25

NAT’L COUNCIL OF NONPROFITS (2014) ......................................................................................3, 5

26 Kristen Underhill,

Paying for Prevention: Challenges to Health Insurance Coverage for Biomedical

27

HIV Prevention in the United States, 38(4) Am. J. Law Med. 607 (2012)....................................12

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iii.

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1 I.

SUMMARY OF ARGUMENT & INTEREST OF AMICI CURIAE

2

On January 25, 2017, the President of the United States signed an Executive Order that

3 empowers the federal government to withhold federal funds from jurisdictions that are deemed

4 “sanctuary” jurisdictions. Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive

5 Order”).1 The uncertainty created by the Executive Order causes real and imminent harm to

6 nonprofits serving the communities the Order may affect, and to the communities. Amici are

7 associations of community-based nonprofit organizations in the health and human services sector

8 that are uniquely situated to articulate the Executive Order’s harm to nonprofit organizations and the

9 community.2

10

The Executive Order is causing extreme financial uncertainty for amici’s members and other

11 nonprofit organizations. Many nonprofits depend on federal funding that states, counties, and

12 municipalities receive and pass through to them to provide services. With that funding in question,

13 nonprofits have to alter their budget planning processes and spend time and resources on

14 contingency planning. Organizations face the prospect of cutting vital services, at the very time that

15 demand for services will be increasing due to cuts to county and municipal services. Nonprofits are

16 not only feeling the effects of the Executive Order on their own planning and programming, but also

17 seeing negative effects on the vulnerable community members they serve, who are expressing fear

18 and anxiety about accessing both government and nonprofit services. The community at large

19 suffers irreparable harm when some members of the community cannot access important health and

20 safety resources. The immediate harms to both the nonprofits and the communities they serve

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1 The Executive Order does not clearly define what a “sanctuary” jurisdiction is, so communities are left to guess whether their jurisdictions will be designated as such (although at a minimum, the Order applies to jurisdictions that do not comply with 8 U.S.C. § 1373, which requires local jurisdictions to detain individuals beyond their incarceration periods for immigration enforcement). 2 Amici curiae include thirteen nonprofit associations: API Council of San Francisco, California Association of Nonprofits, Coalition of Agencies Serving the Elderly, Council of Community Housing Organizations, HIV/AIDS Provider Network, Homeless Emergency Service Providers Association, Long Term Care Coordinating Council, San Francisco Human Services Network, San Francisco Interfaith Council, San Francisco Latino Parity and Equity Coalition, San Francisco Mental Health Contractors Association, Silicon Valley Council of Nonprofits, and Supportive Housing Providers Network. The San Francisco amici associations include as members a substantial number of the nearly 300 nonprofits that contract with the City to provide services. Descriptions of amici are provided in Appendix A.

1.

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1 warrant a nationwide preliminary injunction, to prevent further harm to the public interest while the

2 legality of the Executive Order is adjudicated.

3 II. ARGUMENT

4

A. Legal Context

5

To secure a preliminary injunction, a plaintiff must establish that (1) it “is likely to succeed

6 on the merits;” (2) it “is likely to suffer irreparable harm in the absence of preliminary relief;”

7 (3) “the balance of equities tips in [its] favor;” and (4) “an injunction is in the public interest.”

8 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Amici present information on the

9 nature of the irreparable harms at issue and the reasons an injunction serves the public interest.

10

Nonprofits are already suffering irreparable harm due to extreme financial uncertainty caused

11 by expected loss of multiple funding streams. And the community members they serve are afraid to

12 access services and afraid of losing essential services upon which they rely. Uncertainty, itself, can

13 constitute irreparable harm. See Angotti v. Rexam, Inc., No. C 05-5264 CW, 2006 WL 1646135, at

14 *3, *15-16 (N.D. Cal. June 14, 2006) (granting injunction where retirees faced “the irreparable harm

15 of anxiety” after benefits were threatened, when they believed they would receive certain lifetime

16 benefits and therefore did not budget for supplemental expenses); see also California Ass’n of

17 Health Care Facilities v. Dep’t of Health Servs., No. Civ. S-90-1086 RAR GGH, 1990 WL 282598,

18 at *1 (E.D. Cal. Oct. 1, 1990) (finding that “inadequate and untimely assurances about the levels of

19 [federal] payment currently in effect” created a “possibility” that health facilities providing services

20 to Medicaid beneficiaries “will suffer immediate and irreparable harm”). Neither nonprofits nor

21 community members should be subjected to such harms while waiting for the court to resolve legal

22 challenges to the Executive Order. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342

23 (2014) (“[W]here threatened action by government is concerned,” a plaintiff need not “expose

24 himself to liability before bringing suit to challenge the basis for the threat.” (citation omitted)).

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B. The Executive Order Causes Irreparable Harm to Nonprofit Organizations and Those They Serve Because of the Substantial Budgetary Uncertainty It Creates.

Nonprofit organizations in the health and human services sector provide crucial services to

the most vulnerable members of the community, distinct from those services provided by the

2.

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1 government. Nonprofits are often located in the communities they serve, hire people who live in

2 those communities, and enjoy a special level of trust. Their employees often have particular

3 expertise (such as language ability) and cultural understanding that aids their ability to develop

4 strong relationships with community members. See, e.g., San Francisco Human Services Network,

5 A Comprehensive Profile of San Francisco’s Nonprofit Human Service Providers, SAN FRANCISCO

6 URBAN INST. 10-11 (2002), http://www.sfhsn.org/downloads/documents/survey/hsn_iss_sur_report_

7 04-18-02.pdf. As a result, nonprofits across the country play a critical role in their communities, and

8 provide an essential safety net for many who do not otherwise have access to vital services.

9

Many nonprofits rely on government funding to support their life-saving and life-sustaining

10 services. They are concerned that, as a result of the Executive Order, federal funding passed through

11 county and municipal governments will disappear3; that direct county and municipal funding will

12 need to be reallocated to other areas to cover the shortfall from the loss of federal funding; and that

13 their ability to raise funds from private sources (many of which match government funding sources)

14 will also be reduced.4 As a result of this severe budgetary uncertainty, nonprofit organizations are

15 now developing contingency plans and considering cutting services that are desperately needed in

16 the communities they serve, right when those services are needed most.

17

1. Nonprofits rely on federal and local funding that is now in jeopardy.

18

Most nonprofits are funded with a blend of government, foundation, and other private

19 funding streams, with about a third of total revenue coming from government contracts. Toward

20 Common Sense Contracting, NAT’L COUNCIL OF NONPROFITS, 5 (2014),

21 https://www.councilofnonprofits.org/sites/default/files/documents/toward-common-sense-

22 contracting-what-taxpayers-deserve.pdf. Those government sources may be federal, state, or local

23 governments, or a combination thereof. 2015 State of the Nonprofit Sector Survey, NONPROFIT

24

25
26
27
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3 The government argues that the Executive Order threatens “federal grants” only, not all federal funding. (Dkt. 35 at 8.) However, because “federal grants” is undefined and vague in the context of the Order, nonprofits must make difficult decisions about downsizing programs, services, and staff. 4 Counsel for amici have interviewed and received information from the associations of nonprofit organizations that are filing this brief. Information throughout the brief that relates to the associations and their members was obtained through these interviews and requests for information.

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1 FINANCE FUND, 12 (May 2015), http://www.nonprofitfinancefund.org/sites/

2 default/files/docs/2015/2015survey_natl_full_results.pdf. Federal funding is often provided to

3 counties or other local governments for particular purposes, and then “passed through” to nonprofits

4 to actually provide the services. The City and County of San Francisco (“San Francisco” or the

5 “City”) paid $654.3 million to nonprofits in the 2015-2016 fiscal year, including federal pass-

6 through dollars and direct City funding. City and County of San Francisco, Office of the Controller,

7 SFOpenBook, http://openbook.sfgov.org/ (last visited Mar. 21, 2017) (report for vendor payments to

8 nonprofits in fiscal year 2015-16). The contracts with nonprofits vary in size, with some over $20

9 million, and cover social services, behavioral health services, housing programs, and more. See id.

10

The interrelation of nonprofit and government budgets means that a determination that a

11 state, county, or city is a “sanctuary” jurisdiction (and will therefore lose federal funding pursuant to

12 the Executive Order) will be devastating for the many nonprofits that rely on funding from those

13 jurisdictions. Nonprofits will lose federal funding for their programs that is passed through those

14 jurisdictions. Then, “sanctuary” jurisdictions will necessarily need to reallocate money to cover

15 essential services, likely resulting in additional cuts to nonprofit funding streams from those

16 jurisdictions’ general funds. To the extent that many nonprofits are funded by other cities or

17 counties that may also be designated “sanctuary” jurisdictions, the Executive Order places even

18 larger portions of their budgets at risk.

19

The San Francisco nonprofit community will feel these losses acutely. The City formulated

20 its 2016-2017 budget based on the expectation that it would receive $1.2 billion in federal funds.

21 City of San Francisco, Office of the Controller, FY 2016-17 Six-Month Budget Status Report, at 6,

22 http://sfcontroller.org/sites/default/files/Documents/Budget/FY%202016-17%206-

23 Month%20Report.pdf. The vast majority of these funds support programs in San Francisco’s

24 Human Services Agency and Department of Public Health. (Declaration of City and County of San

25 Francisco Controller Ben Rosenfield, Dkt. 22, ¶ 10.) If the City loses access to federal funds, it will

26 have to make “drastic service cuts.” (Id. ¶¶ 36-37.) Indeed, the financial uncertainty caused by the

27 Executive Order is already forcing the City to consider reducing its general fund expenditures.

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4.

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1 (Declaration of Mayor’s Budget Director for the City and County of San Francisco Melissa

2 Whitehouse, Dkt. 23, ¶¶ 10-11(“Whitehouse Decl.”).)

3

If federal funding is cut, nonprofits will not be able to simply recoup the budgetary shortfall

4 using contributions from private sources such as foundations. Foundation grants account for less

5 than two percent of nonprofit revenue. Toward Common Sense Contracting, NAT’L COUNCIL OF

6 NONPROFITS at 5. Moreover, foundations have their own missions and funding priorities, which may

7 not coincide with filling the gaps created by government funding cuts. Id. at 6. Many nonprofits

8 already rely on private funding, including but not limited to foundation grants, to supplement limited

9 government funding for particular programs. Id. at 14. If government funding for particular

10 programs is lost, the private funding for those programs may dry up as well, especially if the private

11 component alone is not sufficient to keep the programs afloat.

12

The possibility of losing federal, county, municipal, and some private funding simultaneously

13 in the near future is causing extreme budget uncertainty and harm to nonprofits immediately, as they

14 scramble to ascertain the extent of the possible effect on their organizations, develop contingency

15 plans, consider freezing hiring, and take other measures to plan for the likelihood of decreased

16 funding. These stresses on already understaffed and under-resourced organizations impact their

17 ability to fulfill their missions even before any cuts are made.

18

2. Nonprofits are considering cutting services due to the severe budget

19

uncertainty caused by the Executive Order.

20

Uncertainty, itself, can harm nonprofit organizations and inhibit their ability to provide

21 necessary programming. Most nonprofits already operate with tight budget constraints and strain to

22 meet community needs. In fact, most nonprofits have no more than three months of operating funds

23 in the bank. Id. at 5. Organizations in jurisdictions that may be deemed “sanctuary” jurisdictions

24 now face severe budget uncertainty because of the scope of the funding threatened by the Executive

25 Order. They must immediately curtail development of new programs and services and begin

26 deciding how they will cut existing programs if the Order is implemented.

27

Even delayed funding can have a significant effect on nonprofits, given their tight budgets.

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When government funding is late (no less eliminated, as the Executive Order threatens), “many

5.

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1 nonprofits are forced to divert efforts away from their missions as they scramble to . . . pay their

2 employees, rent and utilities, and other operating costs by raising funds from other sources such as

3 private donations or bridge loans, or by taking extraordinary actions like curtailing operations and

4 laying off employees.” A Dozen Common Sense Solutions to Government-Nonprofit Contracting

5 Problems, NAT’L COUNCIL OF NONPROFITS (Dec. 5, 2013), https://www.councilofnonprofits.org/

6 sites/default/files/documents/white-paper-common-sense-solutions.pdf. The impact of the potential

7 loss of federal funds can be likened to the impact of the economic downturn in late 2008 and early

8 2009, when nonprofits likewise lost significant funding. A survey of nonprofits found that 57% had

9 to reduce services, 45% enacted a salary freeze, 37% enacted a hiring freeze, and 30% made layoffs.

10 Chuck McLean & Carol Brouwer, The Effect of the Economy on the Nonprofit Sector: October

11 2008–February 2009, GUIDESTAR, 9 (2009),

12 https://www.guidestar.org/ViewCmsFile.aspx?ContentID=3909.

13

Nonprofits are already feeling the effects of the financial uncertainty caused by the Executive

14 Order. Organizations with a fiscal year ending on June 30 face the prospect of reducing staff and

15 services in the near future due to the threat of San Francisco losing federal funding. For instance,

16 GLIDE, an organization that provides batterers’ intervention programs, victims’ recovery programs,

17 food security programs, and HIV and Hepatitis C prevention programs, has already created a task

18 force to examine how the proposed cuts would affect its programs. That group concluded that

19 several of GLIDE’s programs may have to close if the City loses federal funding. GLIDE’s food

20 security programs are particularly vulnerable, as GLIDE receives significant resources from the

21 federally-funded San Francisco Food Bank. As a result, if the federal government withholds federal

22 funds from San Francisco, GLIDE’s efforts to combat hunger and the spread of infectious disease

23 will be impaired.

24

Similarly, nonprofit mental health service providers will have to make drastic cuts if

25 government funding is cut—including cutting programs and staff. One such organization, Citywide

26 Case Management Programs, serves mentally ill adults on their release from hospitals and jails. If

27 San Francisco’s federal funding is cut, Citywide will be forced to stop providing or drastically

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reduce services to these high-risk clients. Programs offered by Conard House, which provides

6.

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1 supportive housing and services to adults with mental health disabilities, will also be in jeopardy—

2 both because of reduced government funding for its programs and because it relies on government

3 funding to demonstrate to potential private donors the program’s long-term viability. Providers are

4 concerned that programmatic cuts will result in more homeless people—especially those with mental

5 illness—on the streets. Federal funding cuts also imperil programs providing HIV/AIDS prevention

6 services—leading to an increase in health care costs and potential increase in HIV/AIDS

7 transmission.

8

Operating under these concerns, nonprofits have already been forced to take time away from

9 realizing their missions to create contingency plans due to the uncertainty caused by the Executive

10 Order. Budgetary uncertainty itself is impairing the ability of these organizations to fulfill their

11 missions to provide vital services to the neediest members of their communities.

12

3. Nonprofits will face more demand for their services and for new services

13

as government services are cut.

14

At the same time that nonprofits are planning for possible service cuts due to the likelihood

15 of lost funding, they are anticipating increased demand for these services. History has shown that

16 when government funds are cut, the needs of the community increase. But if nonprofit organizations

17 themselves lose funding, they will not be able to step in to fill those new gaps in services, and the

18 most vulnerable members of their communities will be without the assistance they need.

19

These pressures and demands are not speculative. “[R]educing government budgets doesn’t

20 lower the number of people in need of social services; it just adds more pressures on nonprofits to

21 keep up with ever-growing demands.” Tim Delaney & David L. Thompson, Nonprofits Need to

22 Stand Together to Push for Smart Public Policies, CHRON. OF PHILANTHROPY (Jan. 4, 2017),

23 https://www.philanthropy.com/article/Opinion-Nonprofits-Need-to/238802. Government funding

24 cuts result in more people who need nonprofit services, but less funding for the nonprofits to deliver

25 those services. Emily Navarro, Government Funding for Charities: When It Declines, the Charities

26 Lose Twice, CHARITY NAVIGATOR (May 1, 2005), https://www.charitynavigator.org/index.cfm?bay

27 =content.view&cpid=281. This increased demand is difficult, if not impossible, for nonprofits to

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meet without additional resources. When government nutrition programs are cut, “people still need

7.

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1 to eat, so they’re running to the food banks, they’re running to any nonprofit that distributes food or

2 resources. At the same time, the nonprofits have not increased their supply.” John Brothers,

3 Nonprofits Begin Coping with Government Shutdown, NONPROFIT QUARTERLY (Oct. 2, 2013),

4 https://nonprofitquarterly.org/ 2013/10/02/nonprofits-begin-coping-with-government-shutdown.

5

If San Francisco loses federal funding, it would “likely be forced to cut social service safety

6 net programs such as senior meal programs, services for low-income children, violence prevention

7 services and programs for domestic violence survivors,” among other programs for vulnerable

8 members of the community. (Whitehouse Decl. at ¶ 17.) San Francisco nonprofits will be unable to

9 meet the increased need generated by these cuts. GLIDE, for example, is already struggling to

10 figure out how it would meet the increased need if federal funding to San Francisco is cut.

11 Historically, GLIDE has struggled to cope with increased need when the City cannot provide

12 necessary services. In the recession of 2008-2010, despite increased need in the community, GLIDE

13 was forced to cap the number of hot meals it served to contain the rising food costs for the program.

14 If San Francisco loses federal funding and GLIDE loses its City-provided pass-through funds, it will

15 have to close some of the very programs that could have helped those turned away by the City.

16 Other organizations that provide vital services in these areas are concerned they, too, will be unable

17 to meet the increased need. These anticipated budgetary pressures, simultaneous with the threat of

18 the loss of major funding streams, are creating a precarious situation for nonprofits.

19

C. The Executive Order Causes Fear in the Community About Accessing Public

20

Services, Which Harms the Public Interest.

21

The fear the Executive Order has caused in the community endangers public health and

22 safety because it provides a disincentive for vulnerable community members to access programs and

23 services that contribute to individual and public health and well-being (such as medical and mental

24 health clinics, senior and child nutrition programs, education, services for those with disabilities, and

25 support for survivors of domestic violence or trauma). In light of the Executive Order, some

26 immigrants are afraid to seek services from governmental entities and even from nonprofit

27 organizations. This reluctance to access crucial services puts these individuals at risk and also

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causes harm to the community at large. A preliminary injunction would prevent further harm while

8.

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1 the legality of the Executive Order is adjudicated and thus would be in the public interest.

2

Experience demonstrates that increased immigration enforcement causes anxiety in the

3 immigrant community, leading in turn to reduction in utilization of healthcare programs and other

4 vital services. For example, in 1994, California passed Proposition 187, which required some

5 service providers, including medical professionals, to report individuals suspected of being

6 undocumented. California Proposition 187 §§ 6-8 (1994) (found unconstitutional by a federal

7 district court); League of United Latin Am. Citizens v. Wilson, Nos. 94-7569 MRP, 1998 WL

8 141325, at *1 (C.D. Cal. Mar. 13, 1998). Studies have found that Proposition 187 had at least a

9 temporary deterrent effect on use of health care services, and that “lack of documentation—and the

10 fear associated with it—is a powerful deterrent to people obtaining care they believe they need.”

11 Marc L. Berk & Claudia L. Schur, The Effect of Fear on Access to Care Among Undocumented

12 Latino Immigrants, 3 J. IMMIGR. HEALTH 151, 155 (2001). Community reaction to Arizona Senate

13 Bill 1070 (2010) is also instructive. SB 1070 affirmatively allowed law enforcement to demand

14 proof of immigration status. Ariz. Rev. Stat. Ann. § 11-1051 (2010). Researchers found that “the

15 enactment of Arizona’s SB 1070 was associated with decreases in the utilization of public assistance

16 and routine, preventive health care.” Russell B. Toomey et al., Impact of Arizona’s SB 1070

17 Immigration Law on Utilization of Health Care and Public Assistance Among Mexican-Origin

18 Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S1, S31 (2014).

19

In the wake of the Executive Order, there is similar evidence of anxiety leading to

20 immigrants declining to utilize public services. In a recent survey of twenty nonprofits serving

21 immigrants around the country, seventeen reported “legally eligible families declining to enroll or

22 even unenrolling from programs including SNAP, Medicaid, the Children’s Health Insurance

23 Program, free school lunches, and the Women, Infants, and Children program.” Annie Lowrey,

24 Trump’s Anti-Immigrant Policies Are Scaring Eligible Families Away from the Saftey Net, THE

25 ATLANTIC (Mar. 24, 2017), https://www.theatlantic.com/business/archive/2017/03/trump-safety-net-

26 latino-families/520779/?utm_source=nl-atlantic-weekly-032417. Members of the California

27 Association of Nonprofits (a statewide membership organization for nonprofits across a range of

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sectors) likewise report that many nonprofit clients are declining to seek health care due to fear since

9.

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1 the election. One member organization actually shut down for a couple of months because so many

2 of its clients were scared to be in public and to access services.

3

Mayor Ed Lee of San Francisco held a press conference in January 2017 to address anxiety in

4 the community, affirming that San Francisco would “not allow its immigrant residents ‘to live in

5 fear’” and would continue to observe the City’s sanctuary city policy. Emily Green and Kevin

6 Fagan, SF Mayor Lee Stands Up to Trump, Says City Remains a Sanctuary, SAN FRANCISCO

7 CHRONICLE (Jan. 25, 2017), http://www.sfchronicle.com/bayarea/article/SF-Mayor-Lee-stands-up-

8 to-Trump-says-city-10883956.php?t=044af31a8e&cmpid=premartcl. Despite these assurances,

9 though, anxiety in immigrant communities in and around San Francisco remains high. Peter Walsh,

10 a San Francisco Police Commander, notes that “SFPD is noticing a reluctance to talk to law

11 enforcement and fear and confusion surrounding SFPD’s relationship with the United States

12 Immigration and Customs Enforcement.” (Declaration of Peter Walsh, Dkt. 25, ¶ 8.)

13

Many of the amici organizations are receiving inquiries from immigrant clients about

14 whether it is safe to access public services. The fear is not limited to those who are undocumented—

15 queries are also coming from clients with valid immigration status. Amicus organization San

16 Francisco Mental Health Contractors Association has received reports from its members that

17 undocumented clients are avoiding seeking medical care, going to the emergency room, and

18 contacting the police (even to report crimes) because of concerns of deportation. Likewise, a

19 member organization of amicus Silicon Valley Council of Nonprofits that serves domestic violence

20 survivors reports that more clients are avoiding law enforcement and court appearances. The

21 problem is compounded because many immigrant families are “mixed status”—they include some

22 family members who are documented (including U.S. citizens), and some who are not. Many

23 documented members of mixed-status families fear disclosing any information about the household

24 and accessing services, regardless of their own valid immigration status.

25

The anxiety in the community goes beyond fear of accessing government services. Many

26 clients are not aware of which programs and services are run by governmental agencies and which

27 are run by independent nonprofits. As a result, some clients have expressed anxiety about sharing

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personal information and accessing services even at nonprofit organizations. After receiving

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1 multiple inquiries, one member organization felt compelled to post signs onsite to reassure clients

2 that their organization does not report the legal status of clients to the government. The need to take

3 such steps in light of the Executive Order adds to the burdens placed on nonprofits, discussed above.

4 Efforts to inform the community about the safety of accessing public and nonprofit services cost

5 time and money, taking away from activities more closely related to the nonprofits’ missions.

6

When individuals are too scared of immigration consequences to seek essential services, the

7 risks for individual and public safety increase. Indeed, low-income immigrants targeted by

8 immigration enforcement measures are among the most vulnerable in the population. See Toomey at

9 S30-S31. In many jurisdictions, policies not to ask individuals about immigration status have had

10 the stated purpose of encouraging victims of crimes such as domestic violence to seek assistance—

11 and they have been successful. Bill Ong Hing, Immigration Sanctuary Policies: Constitutional and

12 Representative of Good Policing and Good Public Policy, 2 UC Irvine L. Rev. 247, 254-55 (2012).

13 The community as a whole is safer when violent crimes are reported and the criminals apprehended.

14 See id. at 304.

15

There are similar risks to individual and public health due to anxiety about accessing

16 healthcare. Individuals may not seek preventive care, vital prescriptions, or care for acute conditions

17 until they experience an emergency. Indeed, in Arizona, researchers found that some of the most

18 vulnerable members of the community, adolescent mothers, were the most likely to refrain from

19 seeking preventive care for themselves and their children as a result of SB 1070. Toomey at S30-

20 S31. This finding is alarming because preventive care, including immunizations, is critical for

21 public health. Id. at S32. Keeping up with preventive care also decreases emergency room visits,

22 lowering health care costs for communities. See, e.g., Barbara Starfield et al., Contribution of

23 Primary Care to Health Systems and Health, 83(3) MILBANK QUARTERLY 457, 473 (2005).

24

This concern is exemplified by the experience of amicus HIV/AIDS Provider Network’s

25 members—many immigrant clients of its member organizations fled horrendous persecution in their

26 home countries due to HIV+ status or sexual orientation. These clients are often reluctant to seek

27 medical care for fear of being deported back to dangerous situations, and additional anxiety around

28
COOLEY LLP
ATTORNEYS AT LAW PALO ALTO

being deported can lead to avoidance of treatment and prevention services. This avoidance poses

11.

BRIEF OF AMICI CURIAE NONPROFITS ISO PLTF’S MOTION FOR PRELIMINARY INJUNCTION

(CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-1 Filed 03/29/17 Page 16 of 16

1 obvious risks not only to individual health but to public health. The health of the community as a

2 whole is at risk from the spread of disease when a significant portion of the community cannot

3 access either preventive services or treatment. See Kristen Underhill, Paying for Prevention:

4 Challenges to Health Insurance Coverage for Biomedical HIV Prevention in the United States, 38(4)

5 Am. J. Law Med. 607, 611-13 (2012).

6

In communities around the country like San Francisco that have significant immigrant

7 populations, the uncertainty caused by the Executive Order affects a large segment of the

8 community, and the community as a whole. Current levels of anxiety endanger the progress that the

9 community has made over time toward encouraging public health through access to health and

10 nutrition services. A preliminary injunction blocking the implementation of the Executive Order

11 will prevent irreparable harm to the amici’s member organizations, to the clients those organizations

12 serve, and to the community, and is in the public interest.

13 III. CONCLUSION

14

On behalf of their member organizations, their clients and the communities they serve, amici

15 curiae urge this Court to grant a nationwide preliminary injunction and prevent further harm and

16 damage to the public interest while the status of the Executive Order is adjudicated.

17 Dated: March 29, 2017
18
19

COOLEY LLP & LAW FOUNDATION OF SILICON VALLEY

20

/s/ Maureen P. Alger

21

MAUREEN P. ALGER

22

KYRA KAZANTZIS MONIQUE R. SHERMAN

23

DIANA CASTILLO NADIA AZIZ

24

MATTHEW EZER JESSIE A. R. SIMPSON LAGOY

25

SAMANTHA KIRBY

26

Attorneys for Amici Curiae

27

28
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ATTORNEYS AT LAW PALO ALTO

12.

BRIEF OF AMICI CURIAE NONPROFITS ISO PLTF’S MOTION FOR PRELIMINARY INJUNCTION

(CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-2 Filed 03/29/17 Page 1 of 3
APPENDIX A

Case 3:17-cv-00485-WHO Document 68-2 Filed 03/29/17 Page 2 of 3
APPENDIX A
API Council of San Francisco is a 40-member city-wide coalition that advocates for equitable policies and resources on behalf of Asian Pacific Islander communities. The Council has successfully advocated for significant increases in funding to sustain core services in the areas of housing, health, and human services. The Council also coordinates efforts to engage and build its constituency’s base of power and civic engagement. A list of API Council’s members can be found at https://www.apicouncil.org/about-us/our-members/.
California Association of Nonprofits (CalNonprofits) is a statewide association with more than 10,000 members that serves as the voice for California’s nonprofit community. Its members include nonprofits of all sizes and missions, from churches to organizations that help children with disabilities, to symphonies, research centers, and animal shelters. CalNonprofits does research, provides educational programs, works to ensure a favorable economic and regulatory climate for nonprofits, and provides health insurance for 16,000 nonprofit employees.
Coalition of Agencies Serving the Elderly (CASE) is a professional organization of agencies committed to protecting and enhancing services to older adults and adults with disabilities in San Francisco. CASE collaborates with policymakers and government bodies to ensure effective public policies and adequate funding so that vulnerable senior and disabled residents continue to live safely and thrive. A list of CASE’s members can be found at http://sfseniors.org/membership.
Council of Community Housing Organizations (CCHO) has been the voice of the affordable housing movement in San Francisco since 1978. CCHO fights for funding and policies that shape urban development and empower low-income and working-class communities. As a nonprofit coalition of 25 community- and faith-based housing developers and tenant advocates, CCHO crafts actionable public policy and supports resident leadership to create long-term change. A list of CCHO’s members can be found at http://www.sfccho.org/members/.
HIV/AIDS Provider Network (HAPN) is a coalition of 27 community-based agencies that serve people living with or at risk of HIV/AIDS in San Francisco. HAPN advocates for funding for HIV care and prevention services, and works with the City to coordinate and expand the delivery of HIV services. The services provided by the organizations in the Network include primary medical care, mental health care, home-delivered meals, benefits counseling, and housing.
Homeless Emergency Service Providers Association (HESPA) represents the collective voice of 26 nonprofit organizations working to provide emergency homeless services, and advocates for policies that address the issue of homelessness in San Francisco. HESPA has developed proposals to ensure safe and dignified emergency services, secure funding to continue services from federal grants, prevent homelessness, and create exits out of homelessness.
Long Term Care Coordinating Council (LTCCC) is an advisory body to the Mayor’s Office, comprised of 40 members representing community agencies, San Francisco city departments, and consumers. The LTCCC makes policy recommendations related to improving access to long
1. APPENDIX A TO NONPROFIT ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE & BRIEF OF AMICI CURIAE NONPROFIT ASSOCIATIONS IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION (CASE NO.: 17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-2 Filed 03/29/17 Page 3 of 3
term care and supportive services for San Francisco residents through the coordination of care in community and institutional settings and among service sectors. More information and a list of members can be found at http://www.ltcccsf.org/.
San Francisco Human Services Network (HSN) is an association of 80 community-based nonprofit agencies dedicated to addressing issues critical to the health and human services sector in San Francisco. HSN provides a unique contribution to the City by educating service providers, elected officials, policymakers, and the community on how policy decisions affect San Francisco’s comprehensive array of social and health programs. A list of HSN’s members can be found at http://www.sfhsn.org/members_members.htm.
San Francisco Interfaith Council (SFIC) serves as “convener” of the CEOs of fifteen major faith-based social service agencies to provide a forum to address issues of common concern. SFIC promotes the agencies’ collective impact and advocates on their behalf to increase the visibility of the economic challenges faced by nonprofits and their clients. A list of participating agencies can be found at http://www.sfinterfaithcouncil.org/social-service-agencies.
San Francisco Latino Parity and Equity Coalition (SFLPEC) is a broad-based, citywide coalition working to ensure that Latinos/as who live or work in San Francisco are being justly represented and provided with the resources they need to reach their full potential. The coalition was established to ensure the city’s budget promotes investments that empower Latino/a communities, and reduces inequities for San Francisco’s Latino/a residents. SFLPEC also enhances and strengthens social services in the midst of the region’s affordable housing crisis.
San Francisco Mental Health Contractors Association includes more than a dozen nonprofits that together provide over 60% of the outpatient mental health services for San Francisco’s children, families, transitional aged youth, adults, and seniors. These services are critical to the prevention of psychiatric hospitalizations, incarcerations, and family dissolution.
Silicon Valley Council of Nonprofits (SVCN) brings together nonprofits in Santa Clara County to help maximize their influence and contributions. The Council works with a network of 200 member health and human service agencies that provide a wide array of services to the community, including domestic violence intervention, support for at-risk youth, emergency assistance, food access, senior nutrition and wellness, early childhood and family strengthening services, housing, homeless intervention, and health care services throughout the county. A list of SVCN’s members can be found at http://www.svcn.org/current-members.
Supportive Housing Providers Network (SHPN) is a network of direct service providers, resident leaders, and property managers that seeks to inform, enhance, and respond to policy, systems, and funding issues directly impacting permanent supportive housing in San Francisco. SHPN collaborates with San Francisco’s Department of Homelessness & Supportive Housing, Human Services Agency, Department of Public Health, Mayor’s Office of Housing and other funders to enrich the quantity, quality, and sustainability of supportive housing across San Francisco.
2. APPENDIX A TO NONPROFIT ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE & BRIEF OF AMICI CURIAE NONPROFIT ASSOCIATIONS IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION (CASE NO.: 17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-3 Filed 03/29/17 Page 1 of 2

1 KYRA KAZANTZIS (154612) (kyrak@lawfoundation.org) DIANA CASTILLO (237281) (dianac@lawfoundation.org)
2 NADIA AZIZ (252966) (nadia.aziz@lawfoundation.org) LAW FOUNDATION OF SILICON VALLEY
3 152 N. 3rd Street, #3 San Jose, CA 95112
4 Telephone: (408) 280-2401 Facsimile: (408) 293-0106
5 MAUREEN P. ALGER (208522) (malger@cooley.com)
6 MONIQUE R. SHERMAN (227494) (msherman@cooley.com) MATTHEW EZER (292779) (mezer@cooley.com)
7 JESSIE A. R. SIMPSON LAGOY (305257) (jsimpsonlagoy@cooley.com) SAMANTHA KIRBY (307917) (skirby@cooley.com)
8 COOLEY LLP 3175 Hanover Street
9 Palo Alto, CA 94304-1130 Telephone: (650) 843-5000
10 Facsimile: (650) 849-7400

11 Attorneys for Amici Curiae

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15

16 CITY AND COUNTY OF SAN FRANCISCO,
17 Plaintiff,
18 v.
19 DONALD J. TRUMP, President of the United
20 States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States
21 Department of Homeland Security, JEFFERSON B. SESSIONS, Attorney
22 General of the United States, DOES 1-100,

Case No. 3:17-cv-00485-WHO

[PROPOSED] ORDER GRANTING NONPROFIT ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

Date: Time: Dept. Judge:

April 14, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: January 31, 2017

23

Defendants.

Trial Date: Not Yet Set

24

25

26

27

28
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ATTORNEYS AT LAW PALO ALTO

[PROPOSED] ORDER GRANTING NONPROFIT ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS
AMICI CURIAE (CASE NO.: 3:17-CV-00485-WHO)

Case 3:17-cv-00485-WHO Document 68-3 Filed 03/29/17 Page 2 of 2

1

The Court, having read and considered Nonprofit Associations’ Motion for Leave to File

2 Brief as Amici Curiae, finds that amici’s participation in the above-captioned matter (IS /IS NOT)

3 relevant and desirable to the Court’s disposition of the issues.

4

Accordingly, the Court hereby (GRANTS / DENIES) amici Nonprofit Associations’ Motion

5 for Leave to File Brief as Amici Curiae.

6

7 IT IS SO ORDERED.

8

9 Dated: 10 11

_____________________________________ HONORABLE WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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ATTORNEYS AT LAW PALO ALTO

[PROPOSED] ORDER GRANTING NONPROFIT

1.

ASSOCIATIONS’ MOTION FOR LEAVE TO FILE BRIEF AS

AMICI CURIAE (CASE NO.: 3:17-CV-00485-WHO)

 
 Case 3:17-cv-00485-WHO Document 72 Filed 04/07/17 Page 1 of 2

1 CHAD A. READLER

2

Acting Assistant Attorney General BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
CITY AND COUNTY OF SAN

16 FRANCISCO,

Plaintiff,

17

v.

18 DONALD J. TRUMP, et al.,

No. 3:17-cv-00485-WHO
STIPULATION AND ORDER

19
Defendants.
20

21
WHEREAS, the United States Attorney’s office was served with the complaint in this
22
action on February 6, 2017, so that defendants’ response to the complaint is currently due April 7,
23
2017;
24
WHEREAS, the plaintiff has filed a motion for preliminary injunction, which is currently
25
scheduled for oral argument on April 12, 2017;
26
AND WHEREAS, the defendants require additional time to prepare their response to the
27
complaint, particularly in light of the timing of the argument on plaintiff’s motion;
28

Stipulation and Order No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 72 Filed 04/07/17 Page 2 of 2

1

NOW THEREFORE, the parties hereby stipulate that defendants’ response to the

2 plaintiff’s complaint shall be filed no later than April 28, 2017, and respectfully request that the

3 Court so order.

4

Respectfully submitted,

5

DENNIS J. HERRERA (CA Bar #139669)

CHAD A. READLER

City Attorney
6

Acting Assistant Attorney General

JESSE C. SMITH (CA Bar #122517)

7

Chief Assistant City Attorney

8

RONALD P. FLYNN (CA Bar #184186)

BRIAN STRETCH United States Attorney

9

Chief Deputy City Attorney

JOHN R. TYLER Assistant Director

10

YVONNE R. MERÉ (CA Bar #173594) Chief of Complex and Affirmative Litigation /s/ W. Scott Simpson

11

/s/ Mollie M. Lee

W. SCOTT SIMPSON (Va. Bar #27487)

12

CHRISTINE VAN AKEN (CA Bar #241755) Senior Trial Counsel

13

TARA M. STEELEY (CA Bar #231775)

MOLLIE M. LEE (CA Bar #251404)

Attorneys, Department of Justice

14

SARA J. EISENBERG (CA Bar #269303)

Civil Division, Room 7210

MATTHEW S. LEE (CA Bar #295247)

Federal Programs Branch

15

NEHA GUPTA (CA Bar #308864)

Deputy City Attorneys

16
City Hall, Room 234

17

1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

Post Office Box 883

Washington, D.C. 20044

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

E-mail:

scott.simpson@usdoj.gov

18

Telephone: (415) 554-4748

Facsimile: (415) 554-4715

COUNSEL FOR DEFENDANTS

19

E-Mail:

brittany.feitelberg@sfgov.org DONALD J. TRUMP, President of the

20

COUNSEL FOR PLAINTIFF

CITY AND COUNTY OF SAN

21

FRANCISCO

United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the

22

United States

23

24 PURSUANT TO STIPULATION, IT IS SO ORDERED.

25
Dated: __A_p_r_il__7___________, 2017
26
27
28
Stipulation and Order No. 5:17-cv-00485-WHO

____________________________ WILLIAM H. ORRICK United States District Judge
2

 
 Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 1 of 49

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

ORDER GRANTING THE COUNTY OF SANTA CLARA'S AND CITY AND COUNTY OF SAN FRANCISCO'S MOTIONS TO ENJOIN SECTION 9(a) OF EXECUTIVE ORDER 13768
Case No. 17-cv-00574-WHO

12 CITY AND COUNTY OF SAN
13 FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, et al.,

Case No. 17-cv-00485-WHO

17

Defendants.

18

INTRODUCTION

19

This case involves Executive Order 13768, “Enhancing Public Safety in the Interior of the

20 United States,” which, in addition to outlining a number of immigration enforcement policies,

21 purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not

22 receive Federal funds, except as mandated by law” and to establish a procedure whereby

23 “sanctuary jurisdictions” shall be ineligible to receive federal grants. Executive Order 13768, 82

24 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). In two related actions, the County of

25 Santa Clara and the City and County of San Francisco have challenged Section 9 of the Executive

26 Order as facially unconstitutional and have brought motions for preliminary injunction seeking to

27 enjoin its enforcement. See County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and

28 County of San Francisco v. Trump, 17-cv-0485-WHO.

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 2 of 49

United States District Court Northern District of California

1

The Counties challenge the enforcement provision of the Order, Section 9(a), on several

2 grounds: first, it violates the separation of powers doctrine enshrined in the Constitution because it

3 improperly seeks to wield congressional spending powers; second, it is so overbroad and coercive

4 that even if the President had spending powers, the Order would clearly exceed them and violate

5 the Tenth Amendment’s prohibition against commandeering local jurisdictions; third, it is so

6 vague and standardless that it violates the Fifth Amendment’s Due Process Clause and is void for

7 vagueness; and, finally, because it seeks to deprive local jurisdictions of congressionally allocated

8 funds without any notice or opportunity to be heard, it violates the procedural due process 9 requirements of the Fifth Amendment.1

10

The Government does not respond to the Counties’ constitutional challenges but argues

11 that the Counties lack standing because the Executive Order did not change existing law and

12 because the Counties have not been named “sanctuary jurisdictions” pursuant to the Order. It

13 explained for the first time at oral argument that the Order is merely an exercise of the President’s

14 “bully pulpit” to highlight a changed approach to immigration enforcement. Under this

15 interpretation, Section 9(a) applies only to three federal grants in the Departments of Justice and

16 Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This

17 interpretation renders the Order toothless; the Government can already enforce these three grants

18 by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the

19 terms of existing law. Counsel disavowed any right through the Order for the Government to

20 affect any other part of the billions of dollars in federal funds the Counties receive every year.

21

It is heartening that the Government’s lawyers recognize that the Order cannot do more

22 constitutionally than enforce existing law. But Section 9(a), by its plain language, attempts to

23

24 1 San Francisco also brings a facial challenge to 8 U.S.C. § 1373, arguing that the statute is

25

unconstitutional under the Tenth Amendment because “the whole object” of that section is to “direct the functioning” of state governments. It seeks an injunction enjoining enforcement of

26

Section 1373, or alternatively, because it believes it complies with Section 1373, an injunction preventing the Government from taking adverse action against it on the basis that it has failed to

27

comply with that Section. Briefing on this issue was intermingled with the attack on the Executive Order, and did not adequately address the important issues raised. At the Case Management

28

Conference on May 2, 2017, at 1:30 p.m. we will discuss litigation of this portion of the City’s case.

2

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 3 of 49

United States District Court Northern District of California

1 reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is

2 broader still, addressing all federal funding. And if there was doubt about the scope of the Order,

3 the President and Attorney General have erased it with their public comments. The President has

4 called it “a weapon” to use against jurisdictions that disagree with his preferred policies of

5 immigration enforcement, and his press secretary has reiterated that the President intends to ensure

6 that “counties and other institutions that remain sanctuary cites don’t get federal government

7 funding in compliance with the executive order.” The Attorney General has warned that

8 jurisdictions that do not comply with Section 1373 would suffer “withholding grants, termination

9 of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds

10 previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation

11 offered at the hearing.

12

Although the Government’s new interpretation of the Order is not legally plausible, in

13 effect it appears to put the parties in general agreement regarding the Order’s constitutional

14 limitations. The Constitution vests the spending powers in Congress, not the President, so the

15 Order cannot constitutionally place new conditions on federal funds. Further, the Tenth

16 Amendment requires that conditions on federal funds be unambiguous and timely made; that they

17 bear some relation to the funds at issue; and that the total financial incentive not be coercive.

18 Federal funding that bears no meaningful relationship to immigration enforcement cannot be

19 threatened merely because a jurisdiction chooses an immigration enforcement strategy of which

20 the President disapproves.

21

To succeed in their motions, the Counties must show that they are likely to face immediate

22 irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the

23 balance of harms and public interest weighs in their favor. The Counties have met this burden.

24 They have demonstrated that they have standing to challenge the Order and are currently suffering

25 irreparable harm, not only because the Order has caused and will cause them constitutional

26 injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth

27 Amendment rights, but also because the Order has caused budget uncertainty by threatening to

28 deprive the Counties of hundreds of millions of dollars in federal grants that support core services 3

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 4 of 49

United States District Court Northern District of California

1 in their jurisdictions. They have established that they are likely to succeed on the merits of their

2 claims and that the balance of harms and public interest decisively weigh in favor of an injunction.

3 The Counties’ motions for preliminary injunction against Section 9(a) of the Executive Order are

4 GRANTED as further described below.

5

That said, this injunction does nothing more than implement the effect of the

6 Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney

7 General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does

8 it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary

9 jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from

10 exercising Section 9(a) in a way that violates the Constitution.

11

BACKGROUND

12 I. 13

THE EXECUTIVE ORDER On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

14 “Enhancing Public Safety in the Interior of the United States.” See Harris Decl. ¶ 2; Ex. A (“EO”)

15 (SC Dkt. No. 36-1). In outlining the Executive Order’s purpose, Section 1 reads, in part,

16 “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to

17 shield aliens from removal from the United States.” EO §1. Section 2 states that the policy of the

18 executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law

19 do not receive Federal funds, except as mandated by law.” EO §2(c).

20

Section 9, titled “Sanctuary Jurisdictions” lays out this policy in more detail. It reads:

21

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive

branch to ensure, to the fullest extent of the law, that a State, or a

22

political subdivision of a State, shall comply with 8 U.S.C. 1373.

23

(a) In furtherance of this policy, the Attorney General and the

Secretary, in their discretion and to the extent consistent with law,

24

shall ensure that jurisdictions that willfully refuse to comply with 8

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

25

Federal grants, except as deemed necessary for law enforcement

purposes by the Attorney General or the Secretary. The Secretary

26

has the authority to designate, in his discretion and to the extent

consistent with law, a jurisdiction as a sanctuary jurisdiction. The

27

Attorney General shall take appropriate enforcement action against

any entity that violates 8 U.S.C. 1373, or which has in effect a

28

statute, policy, or practice that prevents or hinders the enforcement

4

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 5 of 49

United States District Court Northern District of California

of Federal law. 1

(b) To better inform the public regarding the public safety threats

2

associated with sanctuary jurisdictions, the Secretary shall utilize the

Declined Detainer Outcome Report or its equivalent and, on a

3

weekly basis, make public a comprehensive list of criminal actions

committed by aliens and any jurisdiction that ignored or otherwise

4

failed to honor any detainers with respect to such aliens.

5

(c) The Director of the Office of Management and Budget is

directed to obtain and provide relevant and responsive information

6

on all Federal grant money that currently is received by any

sanctuary jurisdiction. 7

EO §9.

8

Section 3 of the Order, titled “Definitions,” incorporates the definitions listed in 8 U.S.C. §

9

1101. EO §3. Section 1101 does not define “sanctuary jurisdiction.” The term is not defined

10

anywhere in the Executive Order. Similarly, neither section 1101 nor the Order defines what it

11

means for a jurisdiction to “willfully refuse to comply” with Section 1373 or for a policy to

12

“prevent[] or hinder[] the enforcement of Federal law.” EO §9(a).

13

II. SECTION 1373 14
Section 1373, to which Section 9 refers, prohibits local governments from restricting 15
government officials or entities from communicating immigration status information to ICE. It 16
states in relevant part: 17

(a) In General. Notwithstanding any other provision of Federal,

18

State, or local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any government

19

entity or official from sending to, or receiving from, the Immigration

and Naturalization Service information regarding the citizenship or

20

immigration status, lawful or unlawful, of any individual.

21

(b) Additional Authority of Government Entities. Notwithstanding

any other provision of Federal, State, or local law, no person or

22

agency may prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect to

23

information regarding the immigration status, lawful or unlawful, of

any individual: 24

(1) Sending such information to, or requesting or receiving

25

such information from, the Immigration and Naturalization

Service. 26

(2) Maintaining such information. 27

(3) Exchanging such information with any other Federal,

28

State, or local government entity.

5

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 6 of 49

United States District Court Northern District of California

1 8 U.S.C. 1373.

2

In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant

3 programs, the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial 4 Justice Assistance Grant (“JAG”) to compliance with Section 1373.2 This guidance states that all

5 applicants for these two grant programs are required to “assure and certify compliance with all

6 applicable federal statutes, including Section 1373, as well as all applicable federal regulations,

7 policies, guidelines, and requirements.” Id. The Department has indicated that the Community

8 Oriented Policing Services Grant (COPS) is also conditioned on compliance with Section 1373.

9 III. CIVIL DETAINER REQUESTS

10

An ICE civil detainer request asks a local law enforcement agency to continue to hold an

11 inmate who is in local jail because of actual or suspected violations of state criminal laws for up to

12 48 hours after his or her scheduled release so that ICE can determine if it wants to take that

13 individual into custody. See 8 C.F.R. § 287.7; Neusel Decl. ¶9; Marquez Decl., Ex. C at 3 (SC

14 Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required

15 to honor them. See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014)

16 (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed

17 requests” because any other interpretation would render them unconstitutional under the Tenth

18 Amendment). Several courts have held that it is a violation of the Fourth Amendment for local

19 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because

20 civil detainer requests are often not supported by an individualized determination of probable

21 cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st

22 Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at

23 *9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining

24 individuals in response to a civil detainer request and does not indemnify local jurisdictions for

25

26

2 See 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,

27

2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadzik’s letter as courts may

28

judicially notice information and official documents contained on official government websites. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-999 (9th Cir. 2010).

6

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1 potential liability they could face for related Fourth Amendment violations. See 8 C.F.R. §

2 287.7(e); Marquez Decl. ¶¶ 21-15 & Exs. B-D.

3 IV. THE COUNTIES’ POLICIES

4

A. Santa Clara’s Policies

5

Santa Clara asserts that its local policies and practices with regard to federal immigration

6 enforcement are at odds with the Executive Order’s provisions regarding Section 1373. SC Mot.

7 at 5. (SC Dkt. No. 26). In 2010, the Santa Clara County Board of Supervisors adopted a

8 Resolution prohibiting Santa Clara employees from using County resources to transmit any

9 information to ICE that was collected in the course of providing critical services or benefits.

10 Marquez Decl. ¶27 (SC Dkt. No. 29) & Ex. G (SC Dkt. No. 29-7); Neusel Decl. ¶7 (SC Dkt. No.

11 31); L. Smith Decl. ¶6 (SC Dkt. No. 35). The Resolution also prohibits employees from initiating

12 an inquiry or enforcement action based solely on the individual’s actual or suspected immigration

13 status, national origin, race or ethnicity, or English-speaking ability, or from using County

14 resources to pursue an individual solely because of an actual or suspected violation of immigration

15 law. Id. In October, 2016, after receiving DOJ guidance that JAG and SCAAP funds would be

16 conditioned on compliance with Section 1373, Santa Clara decided not to participate in those

17 programs. Marquez Decl. ¶ 29 & Ex. H (SC Dkt. No. 29-8).

18

Santa Clara also asserts that its policies with regard to ICE civil detainer requests are

19 inconsistent with the Executive Order and the President’s stated immigration enforcement agenda.

20 Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an

21 average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.

22 Neusel Decl. ¶4. When the County raised concerns about the costs associated with complying

23 with detainer requests and potential civil liability, ICE confirmed that it would not reimburse the

24 County or indemnify it for the associated costs and liabilities. Marquez Decl. ¶¶ 21-15 & Exs. B-

25 D.

26

Santa Clara subsequently convened a task force and adopted a new policy where the

27 County agreed to honor requests for individuals with serious or violent felony convictions, but

28 only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl. 7

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1 ¶6; Marquez Decl. ¶26 & Ex. E. ICE has never agreed to reimburse the County for any costs, so

2 since November 2011 the County has declined to honor all ICE detainer requests. Id.

3

B. San Francisco’s Policies

4

San Francisco’s sanctuary city policies are contained in Chapters 12H and 12I of its

5 Administrative Code. Eisenberg Decl. Exs. A-B (SF Dkt. No. 28). The stated purpose of these

6 laws is “to foster respect and trust between law enforcement and residents, to protect limited local

7 resources, to encourage cooperation between residents and City officials, including especially law

8 enforcement and public health officers and employees, and to ensure community security, and due

9 process for all.” S.F. Admin Code § 12I.1.

10

As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,

11 commissions, officers, and employees from using San Francisco funds or resources to assist in

12 enforcing federal immigration law or gathering or disseminating information regarding an

13 individual’s release status, or other confidential identifying information (which as defined does not

14 include immigration status), unless such assistance is required by federal or state law. S.F. Admin

15 Code § 12H.2. Although Chapter 12H previously prohibited city employees from sharing

16 information regarding individuals’ immigration status, the San Francisco Board of Supervisors

17 removed this restriction in July, 2016, due to concerns that the provision violated Section 1373.

18

With regard to civil detainer requests, Chapter 12I prohibits San Francisco law

19 enforcement from detaining an individual, otherwise eligible for release from custody, solely on

20 the basis of a civil immigration detainer request. S.F. Admin Code § 12I.3. It also prohibits local

21 law enforcement from providing ICE with advanced notice that an individual will be released from

22 custody, unless the individual meets certain criteria. S.F. Admin Code § 12I.3. Chapter 12I.3.(e)

23 provides that a “[l]aw enforcement official shall not arrest or detain an individual, or provide any

24 individual’s personal information to a federal immigration officer, on the basis of an

25 administrative warrant, prior deportation order, or other civil immigration document based solely

26 on alleged violations of the civil provisions of immigration laws.” S.F. Admin Code § 12I.3.(e).

27 San Francisco explains that it adopted these policies due to concerns that holding people in

28 response to civil detainers would violate the Fourth Amendment and require it to dedicate scarce 8

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1 law enforcement personnel and resources to holding these individuals. Hennessy Decl. ¶11 (SF

2 Dkt. No. 24).

3 V. 4 5

THE COUNTIES’ FEDERAL FUNDING A. Santa Clara’s Federal Funding In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal

6 and federally dependent funds, making up roughly 35% of the County’s total revenues. J. Smith

7 Decl. ¶6; Marquez Decl. ¶8. This figure includes federal funds provided through entitlement

8 programs.

9

Most of the County’s federal funds are used to provide essential services to its residents.

10 Marquez Decl. ¶¶ 5-8. In support of its motion, the County includes a number of declarations

11 outlining how a loss of any substantial amount of federal funding would force it to make

12 substantial cut backs to safety-net programs and essential services and would require it to lay off

13 thousands of employees. It highlights that the County’s Valley Medical Center, the only public

14 safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which

15 covers up to 70% of its total annual costs. Lorenz Decl. ¶¶ 3, 7 (SC Dkt. No. 28). A loss of all

16 federal funds would shut down Valley Medical Center and cut off the only healthcare option for

17 thousands of poor, elderly, and vulnerable people in the County. Id. ¶ 8. It further highlights that

18 Santa Clara’s Social Services Agency, which provides various services to vulnerable residents,

19 including child welfare and protection, aid to needy families, and support for disabled children,

20 adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.

21 Menicocci Decl. ¶5 (SC Dkt. No. 30). The County’s Public Health Department receives 40% of

22 its budget and $38 million in federal funds. And the County’s Office of Emergency Services,

23 whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives

24 more than two-thirds of its budget from federal funds. Reed Decl. ¶¶ 3-20 (SC Dkt. No. 32).

25

In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement

26 federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 29-1) (showing $338 million in

27 federal grants subject to OMB auditing requirements and an additional $227 million in federal

28 grants through the Department of Housing and Urban Development). This $565 million 9

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1 represents approximately 11% of the County’s budget.

2

B. San Francisco’s Federal Funding

3

San Francisco’s yearly budget is approximately $9.6 billion; it receives approximately $1.2

4 billion of this from the federal government. Rosenfield Decl. ¶9 (SF Dkt. No. 22). San Francisco

5 uses these federal funds to provide vital services such as medical care, social services, and meals

6 to vulnerable residents, to maintain and upgrade roads and public transportation, and to make

7 needed seismic upgrades. Whitehouse Decl. ¶16 (SF Dkt. No. 23). Losing all, or a substantial

8 amount, of federal funds would have significant effects on core San Francisco programs: federal

9 funds make up 100% of Medicare for San Francisco residents, Rosenfield Decl. ¶ 29; 30% of the

10 budget for San Francisco’s Department of Emergency Management, id. ¶¶25-27; 33% of the

11 budget for San Francisco’s Human Services Agency, id. ¶¶13-18; and 40% of the budget for San

12 Francisco’s Department of Public Health, id. ¶¶19-24.

13

Approximately 20% of these federal funds, or $240 million, are from federal grants. Id.

14 ¶29. San Francisco also receives $800 million each year in federal multi-year grants, primarily for

15 public infrastructure projects. Id. ¶11.

16

San Francisco must adopt a balanced budget for the fiscal year beginning July 1, 2017.

17 Whitehouse Decl. ¶16. Under local law, the Mayor must submit a balanced budget to the Board of

18 Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to

19 create a budget reserve to account for the potential loss of significant funds. Id. ¶5-6, 8. Any

20 money placed in the budget reserve would not be available to be used for other programs or

21 services in the coming fiscal year. Id. ¶9.

22

LEGAL STANDARD

23

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

24 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

25 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

26 Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This has been interpreted as a four-part

27 conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a

28 plaintiff may also obtain an injunction if he has demonstrated “serious questions going to the 10

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1 merits” that the balance of hardships “tips sharply” in his favor, that he is likely to suffer

2 irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies

3 v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

4

DISCUSSION

5 I. 6

JUSTICIABILITY The Government argues that the Counties’ claims against the Executive Order are not

7 justiciable because the Counties cannot establish an injury-in-fact, which is necessary to establish

8 standing, and because their claims are not ripe for review. These principles of standing and

9 ripeness go to whether this court has jurisdiction to hear the Counties’ claims. I conclude that the

10 Counties have demonstrated Article III standing to challenge the Executive Order and that their

11 claims are ripe for review.

12

A. Standing

13

Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to

14 “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007); see U.S. Const.

15 art. III, §, cl. 1. “Standing is an essential and unchanging part of the case-or-controversy

16 requirement.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing a

17 plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either

18 actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a

19 favorable decision will redress that injury.” Massachusetts, 549 U.S. at 517 (citing Lujan, 504

20 U.S. at 560-61).

21

The Counties contend that they have standing to challenge the Executive Order because the

22 Order threatens to defund, or otherwise bring enforcement action against, states and local

23 jurisdictions that are “sanctuary jurisdictions.” Although the Order does not clearly define

24 “sanctuary jurisdictions,” it directs the Attorney General and Secretary to ensure that jurisdictions

25 that “willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to

26 receive Federal grants” and elsewhere equates jurisdictions that refuse to honor detainer requests

27 with the term “sanctuary jurisdictions.” It further directs the Attorney General to bring

28 “enforcement action” against jurisdictions with policies that “hinder[] the enforcement of Federal 11

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1 law.”

2

The Counties represent that they have “sanctuary policies” that are likely to subject them to

3 enforcement or defunding under the Order. They assert that enforcement under the Order would

4 result in injury-in-fact in the form of cuts to federal funds and whatever other penalty the

5 Government seeks to impose through its “enforcement action.” As a result of this threat of major

6 cuts to federal funding, the Order is also causing present injury-in-fact in the form of budget

7 uncertainty. Alternatively, attempting to comply with the Order would also cause injury, as it

8 would require them to change their local policies in ways that conflict with their local judgment on

9 how best to ensure public safety and require them to commit substantial resources to assist in

10 enforcing federal immigration laws.

11

The Government raises two primary arguments against the Counties’ claims of standing.

12 First, it asserts that the Counties cannot demonstrate injury-in-fact traceable to the Executive

13 Order because the Order does not change the law in any way, but merely directs the Attorney

14 General and Secretary to enforce existing law. Second, it argues that the Counties’ claims of

15 injury are not sufficiently “concrete” or “imminent” because the Government has not designated

16 either County as a “sanctuary jurisdiction” and has not withheld any federal funds. I will address

17 these arguments in turn.

18

1. Whether the Executive Order Changes the Law

19

The Government’s primary defense is that the Order does not change the law, but merely

20 directs the Attorney General and Secretary to enforce existing law. In its briefing, the

21 Government emphasized Section 9(a)’s provision that it will be implemented “to the extent

22 consistent with law.” It argued that to the extent the Order directs the Attorney General and

23 Secretary to newly condition federal funds on compliance with Section 1373, it could not lawfully

24 do so and so it does not. It asserted, “If the grant language does not require compliance with

25 Section 1373, the Executive Order does not purport to give the Secretary or Attorney General the

26 unilateral authority to alter those terms.” SC Oppo. at 13. By this interpretation, Section 9 simply

27 directs the Attorney General and Secretary to ensure that grants that are already conditioned on

28 compliance with Section 1373 are not remitted to jurisdictions that fail to meet that requirement. 12

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1 At the hearing, the Government went further and explicitly disclaimed the ability under the

2 Executive Order to add conditions to grants authorized by Congress or to enforce the Order

3 against any but three grant programs, SCAAP, JAG and COPS. Government counsel urged me to

4 adopt this narrow reading of the Order, arguing that well-established rules of construction require

5 courts to adopt narrow readings when broader ones would read in constitutional problems.

6

Where a construction of a statute “would raise serious constitutional problems, the Court

7 will construe the statute to avoid such problems unless such construction is plainly contrary to the

8 intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades 9 Council, 485 U.S. 568, 575 (1988).3 “[A]s between two possible interpretations of a statute, by

10 one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that

11 which will save the Act.” Blodgett v. Holden, 275 U.S. 142, 148 (1927). The primary purpose of

12 the doctrine is to “minimize disagreement between the branches by preserving congressional

13 enactments that might otherwise founder on constitutional objections.” Almendarez-Torres v.

14 U.S., 523 U.S. 224, 238 (1998).

15

“This canon is followed out of respect for Congress, which we assume legislates in the

16 light of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). This canon of

17 construction is limited; to adopt an alternate construction the statute must be “readily susceptible”

18 to that construction. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S.

19 366, 409 (1909). It is not the job of the courts “to insert missing terms into the statute or adopt an

20 interpretation precluded by [its] plain language.” Foti v. City of Menlo Park, 146 F.3d 629, 639

21 (9th Cir. 1998).

22

As a preliminary matter, a narrow construction does not limit a plaintiffs’ standing to

23 challenge a law that is subject to multiple interpretations. See Virginia v. American Booksellers

24 Ass’n, Inc., 484 U.S. 383, 392 (1988) (noting that a plaintiff’s standing may be based on its

25 interpretation of the statute even when a narrower interpretation is offered). Therefore, the

26

27

3 The Supreme Court has declined to apply this canon of construction to agency actions and it is unclear that it would apply to an Executive Order. F.C.C. v. Fox Television Stations, Inc., 556

28

U.S. 502, 516 (2009) (“We know of no precedent for applying [the canon of constitutional avoidance] to limit the scope of an authorized executive action.”).

13

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1 Government’s proposed narrow construction does not destroy justiciability.

2

With regards to the merits of the Government’s construction, the Order is not readily

3 susceptible to the Government’s narrow interpretation. Indeed, “[t]o read [the Order] as the

4 Government desires requires rewriting, not just reinterpretation.” U.S. v. Stevens, 559 U.S. 460,

5 481 (2010).

6

While the Government urges that the Order “does not purport to give the Secretary or

7 Attorney General the unilateral authority” to impose new conditions on federal grants, that is

8 exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure

9 that “sanctuary jurisdictions” are “not eligible to receive” federal grants. EO §9(a)(emphasis

10 added). Whether a jurisdiction is eligible to receive federal grants is determined by the conditions

11 on those grants and the characteristics, acts, and choices of the jurisdiction. See BLACK’S LAW

12 DICTIONARY 634 (10th ed. 2014) (defining “eligible” as “Fit and proper to be selected or to

13 receive a benefit.”). Section 9(a)’s language directing the Attorney General and Secretary to

14 ensure that jurisdictions that “willfully refuse to comply” with Section 1373 are “not eligible” for

15 federal grants therefore purports to delegate to the Attorney General and the Secretary the

16 authority to place a new condition on federal grants, compliance with Section 1373. And as

17 Government counsel agreed at the hearing, the power to place conditions on funds belongs

18 exclusively to Congress.

19

The Government attempts to read out all of Section 9(a)’s unconstitutional directives to

20 render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be

21 saved by reading the defunding provision narrowly and “consistent with law,” so that all it does is

22 direct the Attorney General and Secretary to enforce existing grant conditions. But this

23 interpretation is in conflict with the Order’s express language and is plainly not what the Order

24 says. The defunding provision is entirely inconsistent with law in its stated purpose and directives

25 because it instructs the Attorney General and the Secretary to do something that only Congress has

26 the authority to do–place new conditions on federal funds. If Section 9(a) does not direct the

27 Attorney General and Secretary to place new conditions on federal funds then it only authorizes

28 them to do something they already have the power to do, enforce existing grant requirements. 14

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1 Effectively, the Government argues that Section 9(a) is “valid” and does not raise constitutional

2 issues as long as it does nothing at all. But a construction so narrow that it renders a legal action

3 legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order’s

4 broad intent.

5

At the hearing, Government counsel argued that the Order applies only to grants issued by

6 the Department of Justice and the Department of Homeland Security because it is directed only at

7 the Attorney General and Secretary of Homeland Security. This reading is similarly implausible.

8 Nothing in Section 9(a) limits the “Federal grants” affected to those only given though the

9 Departments of Justice and Homeland Security. The Department of Justice is responsible for

10 federal law enforcement throughout the country, not just within its own Department. So when the

11 Attorney General is directed to “ensure that jurisdictions that willfully refuse to comply with 8

12 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

13 necessary for law enforcement purposes by the Attorney General or the Secretary” and to “take

14 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

15 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law,” it is

16 not reasonable to interpret the directive as applying solely to law enforcement grants that the

17 Attorney General and Secretary are specifically given authority to exempt from the Order.

18

Nor is counsel’s narrow interpretation supported by the rest of the Order. Two examples

19 suffice. Section 9(c) instructs the Director of the Office of Management and Budget “to obtain

20 and provide relevant and responsive information on all Federal grant money that currently is

21 received by any sanctuary jurisdiction.” This directive is not limited to grants issued by the

22 Departments of Justice and Homeland Security. And Section 2(c) announces a policy to “ensure

23 that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

24 except as mandated by law.” The Order’s structure and language make clear that a “sanctuary

25 jurisdiction,” which the Secretary will eventually define, should change its policies or risk loss of

26 all federal grants, and Section 9(a) provides the means to do so.

27

The purpose of adopting a plausible valid construction over one that would result in

28 constitutional issues is to save an Act that would otherwise fall on constitutional grounds. A 15

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1 construction so narrow that it reads out any legal force does not save the Act and obviates the

2 entire purpose of adopting a narrow reading. At the hearing, Government counsel explained that

3 the Order is an example of the President’s use of the bully pulpit and, even if read narrowly to

4 have no legal effect, serves the purpose of highlighting the President’s focus on immigration

5 enforcement. While the President is entitled to highlight his policy priorities, an Executive Order

6 carries the force of law. Adopting the Government’s proposed reading would transform an Order

7 that purports to create real legal obligations into a mere policy statement and would work to

8 mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self-

9 cancelling and carries no legal weight.

10

The Supreme Court has acknowledged that applying a narrow construction to an

11 unconstitutionally overbroad statute does not address the confusion and potential deterrent effect

12 caused by the language of the law itself. See, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216

13 (1975) (concluding, in a First Amendment case, that a narrow construction of an overbroad statute

14 was likely inappropriate because the “deterrent effect on legitimate expression is both real and

15 substantial.”). As discussed below, the coercive effects of the Order’s broad language counsel

16 against adopting a narrow construction that deprives it of any legal meaning.

17

The Government’s construction is not reasonable. It requires a complete rewriting of the

18 Order’s language and does not “save” any part of Section 9(a)’s legal effect. There is no doubt

19 that Section 9(a), as written, changes the law.

20

2. Pre-enforcement Standing

21

The Counties argue that they have standing to challenge the Executive Order because they

22 have demonstrated a well-founded belief that the Order will be enforced against them. In turn, the

23 Government argues that the Counties lack standing because the Government has not yet

24 designated the Counties as “sanctuary jurisdictions” or withheld funds.

25

Because the Counties have not yet suffered a loss of funds or other enforcement action

26 under the Executive Order, this case is analogous to the many cases addressing pre-enforcement

27 standing. These cases establish that a plaintiff may demonstrate pre-enforcement standing by

28 showing “an intention to engage in a course of conduct arguably affected with a constitutional 16

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1 interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.”

2 Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979); see Steffel v. Thompson, 415 U.S. 452, 459

3 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to

4 be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”);

5 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (plaintiffs can demonstrate

6 standing by alleging “a credible threat of enforcement”); American Booksellers, 484 U.S. at 392

7 (plaintiffs can establish standing by demonstrating a “well-founded fear that the law will be

8 enforced against them.”).

9

At the hearing, the Government suggested that pre-enforcement review is generally only

10 available when there are criminal penalties or First Amendment issues at stake. While pre-

11 enforcement cases often fall into these categories, pre-enforcement review is not so limited. In a

12 pre-enforcement case, just like any other case, courts are limited by “the primary conception that

13 federal judicial power is to be exercised . . . only at the instance of one who is himself immediately

14 harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, 367 U.S.

15 497, 504 (1961). The Court has repeatedly recognized that “where threatened action by

16 government is concerned, we do not require a plaintiff to expose himself to liability before

17 bringing suit to challenge the basis for the threat – for example, the constitutionality of a law

18 threatened to be enforced.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007).

19 When a threatened injury has not yet been felt, “the question becomes whether any perceived

20 threat to respondents is sufficiently real and immediate to show an existing controversy” O’Shea v.

21 Littleton, 414 U.S. 488, 496 (1974), or whether it is merely “imaginary or speculative,” Younger v.

22 Harris, 401 U.S. 37, 42 (1971).

23

The pre-enforcement line of cases outlines a framework for answering this question in the

24 context of threatened civil or criminal enforcement action. Just as Article III standing is not

25 reserved for individuals who have suffered criminal penalties or First Amendment restrictions,

26 pre-enforcement review is not reserved for such individuals. See e.g. Terrace v. Thompson, 263

27 U.S. 197, 214 (1923) (noting that a plaintiff has standing to enjoin a law when the government

28 “threatens and is about to commence proceedings, either civil or criminal, to enforce such a law 17

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1 against parties affected”); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926)

2 (holding that a landowner bringing Fourteenth Amendment claims and facing only civil penalties

3 had pre-enforcement standing).

4

Many of the pre-enforcement cases recognize that First Amendment challenges raise an

5 additional consideration for standing purposes because a statute restricting First Amendment rights

6 may cause harm without any enforcement by “chilling speech.” See American Booksellers, at 393

7 (“[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can

8 be realized even without an actual prosecution.”). While this “chilling” effect is particularly

9 important in the First Amendment context, analogous concerns have been recognized in other

10 situations. For example, that a threat of legal action may coerce individuals to abandon their legal

11 rights is well recognized outside of First Amendment restrictions and was one of the driving

12 factors behind the creation of the Declaratory Judgment Act. See MedImmune, 549 U.S. at 129

13 (“The dilemma posed by that coercion—putting the challenger to the choice between abandoning

14 his rights or risking prosecution—is a dilemma that it was the very purpose of the Declaratory

15 Judgment Act to ameliorate.”). And courts have recognized that, outside the First Amendment

16 context, a law’s threat of enforcement may, on its own, cause present injury. See Village of

17 Euclid, 272 U.S. at 386. In Village of Euclid, the Court considered whether a landowner had pre-

18 enforcement standing to challenge a local zoning ordinance that it alleged had drastically reduced

19 the market value of a particular piece of property by limiting its use and threatening to impose

20 penalties for zoning violations. Id. at 384. Although the landowner had not faced any

21 enforcement under the ordinance, the Court concluded the claims were justiciable because “injury

22 is inflicted by the mere existence and threatened enforcement of the ordinance” as “prospective

23 buyers . . . are deterred from buying any part of this land.” Id. 384-385.

24

In sum, the pre-enforcement cases reveal that an individual facing enforcement action may

25 establish standing by demonstrating a well-founded fear of enforcement and a threatened injury

26 that is “sufficiently real and imminent.” O’Shea, 414 U.S. at 496. One may also establish

27 standing by demonstrating that a well-founded fear of enforcement action is itself causing present

28 injury. See American Booksellers, at 393; Village of Euclid, 272 U.S. at 385. 18

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1

As I discuss below, review of the Counties’ allegations demonstrates that they have a well-

2 founded fear of enforcement under the Executive Order. They have further demonstrated that

3 enforcement under the Order would deprive them of federal grants that they use to provide critical

4 services to their residents and that the “mere existence and threatened enforcement” of the Order is

5 causing them present injury in the form of budget uncertainty. They have demonstrated Article III

6 standing to challenge the Order.

7

a. The Counties’ policies are proscribed by the language of the

Executive Order 8

Where it is not fully clear what conduct is proscribed by a statute, a well-founded fear of

9

enforcement may be based in part on a plaintiff’s reasonable interpretation of what conduct is

10

proscribed. See American Booksellers, 484 U.S. at 392. This is true even if a narrower reading of

11

the statute may be available. Id. at 397.

12

In American Booksellers, the Supreme Court concluded that a group of booksellers had

13

standing to challenge a Virginia law that made it unlawful for any person to “knowingly display

14

for commercial purpose” visual or written material depicting sexual conduct “which is harmful to

15

juveniles.” Id. at 386 (citing Va. Code § 18.2-391(a) (Supp. 1987)). The booksellers challenged

16

the statute on First Amendment grounds and alleged that they had standing because they had

17

identified 16 books that they intended to display and that they believed would be covered by the

18

statute. Id. Even though the statute had not been made effective and the State had not identified

19

specific materials that would be implicated by the statute, the Court concluded that this was

20

sufficient to establish Article III standing because “the law is aimed directly at plaintiffs, who, if

21

their interpretation of the statute is correct, will have to take significant and costly compliance

22

measures or risk criminal prosecution.” Id. at 392. Further, while the government put forward a

23

narrow construction of the law that would have made the burden to booksellers and the public

24

“significantly less than that feared and asserted by plaintiffs,” the Court did not consider this

25

construction in assessing the plaintiffs’ standing. Id. at 397.

26

The Counties’ policies are likely to subject them to enforcement given their reasonable

27

interpretation of what conduct and policies the Order purports to proscribe. Section 9(a) of the

28

19

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1 Executive Order directs the Attorney General and the Secretary to “ensure” that “sanctuary

2 jurisdictions” are “not eligible to receive Federal grants.” EO §9(a). The Counties acknowledge

3 that the Executive Order does not clearly define “sanctuary jurisdictions” but note that the Order’s

4 language indicates that a “sanctuary jurisdiction” is, at a minimum, any jurisdiction that “willfully

5 refuse[s] to comply with 8 U.S.C. 1373.” The Government has not clarified what it means to

6 “willfully refuse to comply” with Section 1373, and indeed argues that the Counties lack standing

7 because the Attorney General and Secretary of Homeland Security have not yet figured that out.

8 SC Oppo. at 11 (“[T]he Attorney General and the Secretary of Homeland Security must determine

9 exactly what constitutes ‘willful refusal to comply with 8 U.S.C. § 1373’”). Despite this, on

10 March 27, 2017, Attorney General Sessions “urg[ed] states and local jurisdictions to comply with

11 these federal laws, including 8 U.S.C. Section 1373” and confirmed that “failure to remedy

12 violations could result in withholding grants, termination of grants, and disbarment or ineligibility 13 for future grants.” See RJN-2, Ex. D (“Sessions Press Conference”) (SF Dkt. No. 61-4).4

14

The Attorney General also stated that this policy was “entirely consistent with the

15 Department of Justice’s Office of Justice Program’s guidance that was issued just last summer

16 under the previous government.” Id. In the process of developing that guidance, the Inspector

17 General of the Department of Justice, Michael Horowitz, prepared a memorandum entitled

18 “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant 19 Recipients.” See RJN-1, Ex. A (Dkt. No. 29-1).5 The memorandum studies the policies of several

20 jurisdictions and discusses whether they might violate Section 1373. It supports a broad reading

21 of Section 1373 and specifically notes that San Francisco’s policy prohibiting City employees

22 from using “City funds or resources to assist in the enforcement of federal immigration law or to

23

24 4 I take judicial notice of Attorney General Sessions’s press conference statements which “can be

25

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

26 5 I take judicial notice of the Horowitz memorandum as a government memorandum that is not

27

subject to reasonable dispute. Mack v. S. Bay Beer Distribs., Inc., 789 F.2d 1279, 1282 (9th Cir. 1986) (courts may judicially notice records and reports prepared by administrative bodies);

28

Daniels-Hall, 629 F.3d at 998-999 (courts may judicially notice information contained on official government websites).

20

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1 gather or disseminate information regarding the immigration status of individuals . . . unless such

2 assistance is required by federal or State statute” could run afoul of Section 1373 unless San

3 Francisco employees are aware that they are permitted to share immigration status information

4 with ICE. Id. The memo further suggests that policies prohibiting civil detainer requests, even if

5 they do not explicitly restrict sharing of immigration status information, may nevertheless affect

6 ICE’s interactions with local officials regarding immigration status requests and therefore raise

7 Section 1373 concerns. Id.

8

In addition to the potential that, under the Order, compliance with Section 1373 requires

9 compliance with detainer requests, the Order may also directly require states and local

10 governments to honor ICE detainer requests to avoid being designated “sanctuary jurisdictions.”

11 While the defunding provision in Section 9(a) seems to define “sanctuary jurisdictions” as those

12 that run afoul of Section 1373, Section 9(b) equates “sanctuary jurisdictions” with “any

13 jurisdiction that ignored or otherwise failed to honor any detainers with respect to [aliens that have

14 committed criminal actions].” This language raises the reasonable concern that a state or local

15 government may be designated a sanctuary jurisdiction, and subject to defunding, if it fails to

16 honor ICE detainer requests. This interpretation is supported by Section 9(a)’s broad grant of

17 discretion to the Secretary to designate jurisdictions as “sanctuary jurisdictions.” While the Order

18 states that the Secretary’s designation authority must be exercised “consistent with law,” with the

19 exception of the Order there are no laws regarding “sanctuary jurisdiction” designations: Section 9

20 gives the Secretary unlimited discretion.

21

This reading is also supported by Section 9(a)’s directive to the Attorney General to take

22 “appropriate enforcement action” against any jurisdiction that has a policy or practice that

23 “hinders the enforcement of federal law.” While the Order does not outline what policies

24 “hinder[] the enforcement of Federal law,” Attorney General Sessions recently suggested that a

25 local policy that prohibits compliance with detainer requests would constitute a “policy, or

26 practice that prevents or hinders the enforcement of Federal law.” See Sessions Press Conference

27 at 2 (“Unfortunately, some states and cities have adopted policies designed to frustrate this

28 enforcement of immigration laws. This includes refusing to detain known felons on the federal 21

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1 detainer request, or otherwise failing to comply with these laws.”). Given Section 9(b)’s language

2 equating “sanctuary jurisdictions” with jurisdictions that fail to honor detainer requests, the

3 Secretary’s unlimited discretion in designating jurisdictions as “sanctuary jurisdictions,” and the

4 Order’s instruction that the Attorney General shall take “enforcement action” against jurisdictions

5 that hinder the enforcement of federal law, which the Attorney General has indicated includes, at a

6 minimum, failure to honor detainer requests, the Order appears to proscribe states and local

7 jurisdictions from adopting policies that refuse to honor detainer requests.

8

Santa Clara’s policy, prohibiting local officials from using County funds to transmit

9 information collected in the course of providing critical services or benefits, could be considered a

10 restriction on the intergovernmental exchange of information regarding immigration status in

11 violation of Section 1373. Similar to Santa Clara, San Francisco prohibits the use of City funds or

12 resources “to assist in the enforcement of Federal immigration law.” S.F. Admin. Code § 12H.2.

13 Although these policies do not directly prohibit communications with ICE, given the breadth of

14 the Order and the statements of the Attorney General, the Counties have a well-founded fear that

15 the Government may argue that they may sufficiently interfere with those communications in a

16 way that violates Section 1373. Further, the Counties do not honor civil detainer requests. Under

17 a broad reading, these policies may be considered an improper restriction on the intergovernmental

18 exchange of information in violation of Section 1373, falling within Section 9(b)’s language that

19 jurisdictions that fail to honor detainer requests are “sanctuary jurisdictions.”

20

In short, the Counties are likely to be designated “sanctuary jurisdictions” under their

21 reasonable interpretation of the Executive Order.

22

b. The Government has indicated an intent to enforce the Order

generally and against the Counties more specifically 23

In assessing whether enforcement action is likely, courts look to the past conduct of the

24

government, as well as the government’s statements and representations, to determine whether

25

enforcement is likely or simply “chimerical.” See Steffel, 415 U.S. at 459 (petitioner that had

26

twice been warned to stop handbilling, and whose companion had been arrested, had well-founded

27

fear of enforcement); Poe, 367 U.S. at 508 (1961) (“the fear of enforcement of provisions that

28

22

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1 have during so many years gone uniformly and without exception unenforced” was “chimerical”).

2 A plaintiff does not need to have been specifically threatened with enforcement action to show

3 that enforcement action is likely. See Susan B. Anthony List, 134 S. Ct. at 2345 (plaintiffs

4 demonstrated credible threat of enforcement where the law had previously been enforced against

5 them); American Booksellers, 484 U.S. at 393 (plaintiffs had credible threat of enforcement even

6 though newly enacted law had not become effective and no enforcement action had been brought

7 or threatened under it). However, “the threat of enforcement must at least be ‘credible,’ not

8 simply ‘imaginary or speculative.’ ” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,

9 1140 (9th Cir. 2000) (en banc) (citing Babbitt, 442 U.S. at 298).

10

Although the Government now takes the position that the Order carries no legal force, in

11 its public statements and through its actions it has repeatedly indicated its intent to enforce the

12 Order. The Executive Order was passed on January 27, 2017. Although the defunding provision

13 has not yet been enforced against any jurisdiction, governmental leaders have made numerous

14 statements reaffirming the Government’s intent to enforce the Order and to use the threat of

15 withholding federal funds as a tool to coerce states and local jurisdictions to change their policies.

16 On February 5, 2017, after signing the Executive Order, President Trump confirmed that he was

17 willing and able to use “defunding” as a “weapon” so that sanctuary cities would change their

18 policies. See Harris Decl. Ex. B (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with President

19 Donald J. Trump) at 4 (SC Dkt. No. 36-2) (“I don’t want to defund anybody. I want to give them

20 the money they need to properly operate as a city or a state. If they’re going to have sanctuary 21 cities, we may have to do that. Certainly that would be a weapon.”).6

22

Sean Spicer, the White House press secretary, has confirmed that the Government intends

23 to enforce the order, stating that the President intended to ensure that “counties and other

24 institutions that remain sanctuary cities don’t get federal government funding in compliance with

25

26

27

6 I take judicial notice of President Trump’s interview statements as the veracity of these statements “can be accurately and readily determined from sources whose accuracy cannot

28 reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

23

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1 the executive order.” Harris Decl. Ex. C at 4-5 (SC Dkt. No. 36-3).7 In the same briefing, Spicer

2 cited favorably the actions of Miami-Dade County Mayor Carlos Giménez who, one day after the

3 Executive Order, instructed his Interim Director of Corrections to “honor all immigration detainer 4 requests” “[i]n light of the Executive Order.” See RJN-1, Ex. C (SF Dkt. No. 29-3).8 Lauding

5 Miami-Dade’s actions, Spicer noted that Miami-Dade “understand[s] the importance of this order”

6 and encouraged other jurisdictions to follow its lead. Harris Decl. Ex. C at 4-5.

7

Attorney General Sessions recently reaffirmed the Government’s intent to enforce the

8 defunding provisions, stating that if jurisdictions do not comply with Section 1373, such violations

9 would result in “withholding grants, termination of grants, and disbarment or ineligibility for

10 future grants,” and that the Government would seek to “claw back any funds awarded to a 11 jurisdiction that willfully violates 1373.” Sessions Press Conference at 2.9 When asked at a

12 subsequent press briefing about this claw back process, Spicer confirmed that the Government’s

13 “priority is clear, is to get cities into – into compliance and to make sure we understand there’s not

14 just a financial impact of this, but also a very clear security aspect of this.” RJN-3, Ex. C at 15 15 (SF Dkt. No. 74-3).10

16

The statements of the President, his press secretary and the Attorney General belie the

17

18 7 I take judicial notice of Spicer’s February 8, 2017 press briefing as courts may judicially notice 19 information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

20

8 I take judicial notice of Mayor Giménez’s memorandum as a government memorandum and record. See Mack, 789 F.2d at 1282.

21 9 In addition to these statements, the Government began to implement Section 9(b) of the

22

Executive Order, which is designed to “better inform the public regarding the public safety threats associated with sanctuary jurisdictions” and requires ICE to publish a weekly “Declined Detainer

23

Outcome Report” containing a public list of all “criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

24

See RJN-2, Ex. H. (SF Dkt. No. 61-8). Due to concerns that the weekly reports contained inaccurate information, the Declined Detainer Outcome Report has been “temporarily suspended”

25

but “ICE remains committed to publishing the most accurate information available regarding declined detainers across the country.” Declined Detainer Outcome Report, ICE,

26

https://www.ice.gov/declined-detainer-outcome-report (last visited April 12, 2017). I take judicial notice of the ICE’s Declined Detainer Outcome Reports as courts may judicially notice

27 information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

28

10 I take judicial notice of Spicer’s March 31, 2017 press briefing as courts may judicially notice information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

24

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1 Government’s argument in the briefing that the Order does not change the law. They have

2 repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive

3 Order. The Counties’ concerns that the Government will enforce the defunding provision are well

4 supported by the Government’s public statements and actions, all of which are consistent with

5 enforcing the Order.

6

Finally, in addition to demonstrating that the Government is likely to enforce the Order,

7 the Counties have demonstrated that the Government is particularly likely to target them and the

8 funds on which they rely. In a February 5, 2017 interview, President Trump specifically

9 threatened to defund California, stating: “I’m very much opposed to sanctuary cities. They breed

10 crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of

11 money to California . . . California in many ways is out of control.” See Harris Decl. Ex. B. The

12 Counties have established that they both receive large percentages of their federal funding through

13 the State of California, and that they would suffer injury if California was “defunded.” In a recent

14 joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court, Attorney General

15 Sessions and Secretary Kelly again called out the State of California, as well as its cities and

16 counties, for their sanctuary policies: “Some jurisdictions, including the State of California and

17 many of its largest counties and cities, have enacted statutes and ordinances designed to

18 specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication

19 with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make 20 arrests.” RJN-3, Ex. A (SF Dkt. No. 74-1).11 ICE has identified California, Santa Clara County,

21 and San Francisco as jurisdictions with policies that “Restrict Cooperation with ICE” and has

22 identified Santa Clara County Main Jail and San Francisco County Jail as two of eleven detention

23 centers with the “highest volume of detainers issued” that “do not comply with detainers on a

24 routine basis.” RJN-3, Ex. B (SF Dkt. No. 74-2).

25

The President and the Attorney General have also repeatedly held up San Francisco

26

27 11 I take judicial notice of Attorney General Sessions’s and Secretary Kelly’s letter as an official 28 government document. See Mack, 789 F.2d at 1282.
25

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1 specifically as an example of how sanctuary policies threaten public safety. In his statements to

2 the press on March 27, 2017, Attorney General Sessions referenced the tragic death of Kate

3 Steinle and noted that her killer “admitted the only reason he came to San Francisco was because

4 it was a sanctuary city.” Sessions Press Conference at 1. In an op-ed recently published in the

5 San Francisco Chronicle, the Attorney General wrote that “Kathryn Steinle might be alive today if

6 she had not lived in a ‘sanctuary city’ ” and implored “San Francisco and other cities to re7 evaluate these policies.” RJN-3, Ex. D (SF Dkt. No. 74-4).12 These statements indicate not only

8 the belief that San Francisco is a “sanctuary jurisdiction” but that its policies are particularly

9 dangerous and in need of change. They also reveal a choice by the Government to hold up San

10 Francisco as an exemplar of a sanctuary jurisdiction.

11

The Government argues that despite these public statements, San Francisco and Santa

12 Clara cannot demonstrate a credible threat of enforcement because the Government has not

13 actually threatened to enforce the Executive Order against them. It points to Thomas v. Anchorage

14 Equal Rights Commission, in which the Ninth Circuit, sitting en banc, concluded that plaintiffs

15 lacked standing to challenge an Alaska law prohibiting landlords from discriminating against

16 tenants on the basis of their marital status. Thomas, 220 F.3d at 1137. In finding the case was

17 non-justiciable, the court highlighted that “[n]o action has ever been brought against the landlords

18 to enforce the marital status provision.” Id. at 1140. However, this was not the only fact

19 informing the court’s analysis: it also noted that plaintiffs could not point to concrete facts

20 showing that they had ever violated the law or were planning to violate it, it stressed that the

21 enforcement agency tasked with enforcing the Alaska law had never heard of plaintiffs before the

22 case was filed, and it emphasized that in 25-years on the books the law had been minimally

23 enforced (resulting in only two civil enforcement actions and no criminal prosecutions). Id. None

24 of these facts are present here.

25

The Government’s specific criticisms of San Francisco, Santa Clara, and California

26

27 12 I take judicial notice of Attorney General Sessions’s statements in his op-ed as the veracity of

28

these statements “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

26

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1 support a well-founded fear that San Francisco and Santa Clara will face enforcement directly

2 under the Executive Order, or could be subject to defunding indirectly through enforcement 3 against California.13 San Francisco and Santa Clara have shown that their current practices and

4 policies are targeted by the Order. They have demonstrated that, in the less-than-three months

5 since the Order was signed, the Government has repeatedly indicated its intent to enforce it. And

6 they have established that the Government has specifically highlighted Santa Clara and San

7 Francisco as jurisdictions with sanctuary policies. On these facts, Santa Clara and San Francisco

8 have demonstrated that the “threat of enforcement [is] credible, not simply imaginary or

9 speculative.” Id. (internal quotation marks omitted).

10

c. The Counties’ claims implicate a constitutional interest

11

The Counties’ claims implicate a constitutional interest, the rights of states and local

12 governments to determine their own local policies and enforcement priorities pursuant to the

13 Tenth Amendment. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592,

14 601 (1982) (highlighting that states have a sovereign interest in “the exercise of sovereign power

15 over individuals and entities within the relevant jurisdiction—this involves the power to create and

16 enforce a legal code, both civil and criminal”); see also New York v. United States, 505 U.S. 144,

17 157-158 (1992) (“[T]he Tenth Amendment confirms that the power of the Federal Government is

18 subject to limits that may, in a given instance, reserve power to the States.”).

19

The Counties explain that their sanctuary policies “reflect local determinations about the

20 best way to promote public health and safety.” SF Mot. at 19 (SF Dkt. No. 21). In contrast to the

21 Order’s assertion that sanctuary jurisdictions are a “public safety threat[],” the Counties contend

22 that, in their judgment and experience, sanctuary policies make the community safer by fostering

23 trust between residents and local law enforcement. Among other things, this community trust

24 encourages undocumented residents to cooperate with police and report crimes, see Individual

25 Sheriffs and Police Chiefs’ Amicus Brief at 3-10 (SF Dkt. No. 59-1); Southern Poverty Law

26

27 13 Amicus briefs on behalf of numerous California cities and counties, public school districts and

28

the State Superintendent of Instruction echo the reasons given by the Counties to demonstrate standing here.

27

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1 Center Amicus Brief at 5 (SF Dkt. No. 38-2) and to obtain preventative medical care and

2 immunizations, which has major implications for public health and works to reduce emergency

3 medical care costs, see Nonprofit Associations’ Amicus Brief at 11(SF Dkt. No. 68-1); SEIU

4 Amicus Brief at 5-6 (SF Dkt. No. 33-1). It also improves schools’ ability to provide quality

5 education to all children. See State Superintendent of Public Instruction’s Amicus Brief at 1-2 (SF 6 Dkt. No. 64-1); Public Schools’ Amicus Brief at 7 (SF Dkt. No. 58-1).14

7

The Counties have demonstrated that their sanctuary policies reflect their local judgment of

8 what policies and practices are most effective for maintaining public safety and community health.

9 Because they argue that the Executive Order seeks to undermine this judgment by attempting to

10 compel them to change their policies and enforce the Federal government’s immigration laws in

11 violation of the Tenth Amendment, their claims implicate a constitutional interest. See Virginia ex

12 rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (“when a federal law interferes with

13 a state’s exercise of its sovereign ‘power to create and enforce a legal code’ [] it inflict[s] on the

14 state the requisite injury-in-fact.”); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228,

15 233 (6th Cir. 1985) (Ohio had standing to litigate the constitutionality of its own law where

16 “effective enforcement of the Ohio statute” was rendered “uncertain by the formal position of the

17 [U.S. Department of Transportation] that the Ohio statute is preempted” as “threatened injury to a

18 State’s enforcement of its safety laws” constitutes an injury-in-fact).

19

20

14 The Counties have received support from dozens of Amici, who collectively filed 16 briefs in support of each motion for preliminary injunction. See, SEIU Amicus Brief (SF Dkt. No. 33-

21

1)(SF Dkt. No. 59-1); Professors of Constitutional Law Amicus Brief (SF Dkt. No. 36-1) (SC Dkt. No. 68-1); Southern Poverty Law Center, et al. Amicus Brief (SF Dkt. No. 38-1)(SC Dkt. No. 67-

22

1); Technology Companies Amicus Brief (SF Dkt. No. 39-1)(SC Dkt. No. 73-1); California Cities and Counties Amicus Brief (SF Dkt. No. 40)(SC Dkt. No. 74-1); Tahirih Justice Center et al.

23

Amicus Brief (SF Dkt. No. 41-1)(SC Dkt. No. 76-1); International Municipal Lawyers Amicus Brief (SF Dkt. No. 47-1); Public Schools Amicus Brief (SF Dkt. No. 58-1)(SC Dkt. No. 77-1);

24

Individual Sheriffs and Police Chiefs Amicus Brief (SF Dkt. No. 59-1)(SC Dkt. No. 65-1); 34 Cities and Counties Amicus Brief (SF Dkt. No. 62-1)(SC Dkt. No. 61-1); Constitutional Law

25

Scholars Amicus Brief (SF Dkt. No. 63-1)(SC Dkt. No. 69-1); California Superintendent of Public Instruction Amicus Brief (SF Dkt. No. 64-1)(SC Dkt. No. 75); State of California Amicus Brief

26

(SF Dkt. No. 66-1)(SC Dkt. No. 71-1); Anti-Defamation League Amicus Brief (SF Dkt. No. 671)(SC Dkt. No. 72-1); Bay Area Non-Profits (SF Dkt. No. 68-1)(SC Dkt. No. 78-1); SIREN

27

Amicus Brief (SC Dkt. No. 64-1); see also NAACP Joinder re Southern Poverty Law Amicus Brief (SF Dkt. No. 69)(SC Dkt. No. 86); Young Women’s Christian Association Joinder re

28

Motion for Preliminary Injunction (SC Dkt. No. 43-3). I GRANT all of Amici’s administrative motions for leave to file Amicus Briefs.

28

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d. The Counties are threatened with the loss of federal grants and

1

face a present injury in the form of budgetary uncertainty

2

The Counties assert that the Order threatens to penalize them for failing to comply with

3 Section 1373 and for failing to honor detainer requests by withholding all federal funds, or at least

4 all federal grants. Section 9(a) does not threaten all federal funding, but it does include all federal

5 grants, which still make up a significant part of the Counties’ budgets. This threatened injury

6 meets Article III’s standing requirements. A “loss of funds promised under federal law [] satisfies

7 Article III’s standing requirement.” Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d

8 956, 965 (9th Cir. 2015).

9

The Counties also explain that the need to mitigate a potential sudden loss of federal funds

10 has thrown their budgeting processes into uproar: they cannot make informed decisions about

11 whether to keep spending federal funds on needed services for which they may not be reimbursed;

12 they are forced to make contingency plans to deal with a potential loss of funds, including placing

13 funds in a budget reserve in lieu of spending that money on needed programs; and the obligation

14 to mitigate potential harm to their residents and drastic cuts to services may ultimately compel

15 them to change their local policies to comply with what they believe to be an unconstitutional

16 Order. The potential loss of all federal grants creates a contingent liability large enough to have

17 real and concrete impacts on the Counties’ ability to budget and plan for the future. As discussed

18 in more detail below, the Counties have demonstrated that they are suffering a present “injury []

19 inflicted by the mere existence and threatened enforcement of the [Order].” Village of Euclid, 272

20 U.S. at 385. In addition to the threatened loss of funds, this may also establish Article III standing.

21

A sudden loss of grant funding would have another effect. The Counties receive large

22 portions of their federal grants through reimbursement structures – the Counties first spend their

23 own money on particular services and then receive reimbursements from the federal government

24 based on the actual services provided. Marquez Decl. ¶ 15. Because these funds are spent on an

25 ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal

26 reimbursements for services already provided. A sudden cut to funding, including a cut to these

27 reimbursements, could place them immediately in significant debt. A sudden and unanticipated

28 cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make 29

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1 even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on

2 budget. Whitehouse Decl. ¶ 9.

3

San Francisco explains that a mid-year loss of only $120 million in federal funding would:

4 require the City to make significant cuts to critical services and would result in reductions in the

5 numbers of first responders, such as police officers, firefighters, and paramedics; require severe

6 cuts to the City’s MUNI transportation system; threaten the Mayor’s program to end chronic

7 veterans’ homelessness by 2018; and likely require cuts to social services, such as senior meals,

8 safety net services for low-income children, and domestic violence prevention services.

9 Whitehouse Decl. ¶17. Because federal grants support key government services, San Francisco

10 asserts that, without clarity about the funds the Order could withhold or claw back, it will need to

11 allocate millions of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of

12 significant funds during the 2017 fiscal year. Whitehouse Decl. ¶8, 10, 15. Any funds placed in a

13 reserve fund will not be available to fund other City programs and services for the 2017 fiscal

14 year, which would result in a dollar-for-dollar reduction in services the City is able to provide its

15 residents. Id. 13-14.

16

Santa Clara asserts that the current budgetary uncertainty puts it in an “untenable position.”

17 Marquez Decl. ¶4. It explains that Santa Clara’s budget for the current fiscal year is already in

18 place and was developed based on careful weighing of various factors, including anticipated

19 revenues, specific service needs, salary and benefits for the County’s 19,000 employees, and the

20 County’s fiscal priorities. Id. ¶12. Because Santa Clara operates federally funded programs on a

21 daily basis, and incurs costs in anticipation that it will be reimbursed, its ability to provide these

22 services depends on the County having some confidence that it will continue to receive the federal

23 reimbursements and funds on which it depends. With the Order’s unclear and broad language

24 threatening a significant cut to funding, the County does not know “whether to (1) continue

25 incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal

26 government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or

27 (3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law

28 enforcement and other resources to assist the federal government in its immigration enforcement 30

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1 efforts.” Id. at 11.

2

The Government argues that governmental budgeting always suffers from some

3 uncertainty due to fluctuations in cost and tax revenues so any uncertainty caused by the Executive

4 Order does not make “an otherwise certain endeavor [] less certain.” While local budgeting

5 always suffers from some uncertainty, as addressed immediately above, it is the magnitude of the

6 present uncertainty and the fact that the Executive Order places at risk funds on which the

7 Counties could previously rely that is causing them harm. The Government also argues that the

8 Counties’ concerns would not be addressed by enjoining the Executive Order because “the Order

9 does not alter or expand existing law governing the Federal Government’s discretion to revoke or

10 deny a grant where the grantee violates legal requirements.” As discussed supra in Section I.A.1,

11 I reject this unpersuasive interpretation of the Order.

12

Finally, the Government asserts that budgetary uncertainty is too abstract to meet Article

13 III’s standing requirements and cites Los Angeles Memorial Coliseum Commission v. National

14 Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The facts of that case are not analogous to

15 this one. There, the Coliseum Commission alleged that there was a reasonable likelihood that the

16 Raiders were “seriously interested” in moving to Los Angeles but that they were unlikely to get

17 the necessary votes from the NFL to approve a transfer under the existing rules. The Ninth Circuit

18 concluded that the Commission’s speculative allegations were not sufficient to establish standing

19 to challenge the transfer approval rules. Id. While the Commission alleged it was likely to suffer

20 losses in revenues as a result of the transfer rules, it made no argument that the NFL’s rules caused

21 the type of significant budget uncertainty alleged here.

22

The Counties cite Clinton v. City of New York, 524 U.S. 417, 438 (1998), which is on

23 point. There, the Court considered whether the City of New York was injured when President

24 Clinton cancelled a section of the Balanced Budget Act of 1997 that waived the federal

25 government’s right to recover certain past taxes from New York. Id. at 422. This cancellation

26 meant that the state was again potentially liable for remitting close to $2.6 billion to the

27 Department of Health and Human Services (“HHS”), and would have to wait for a determination

28 from the HHS as to whether it would grant the state’s requests to waive those taxes. Id. The 31

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1 Court rejected the government’s argument that the City’s injuries were too speculative. It

2 concluded that although there was still a potential that New York’s taxes would be waived, the

3 President’s cancellation had deprived New York of the benefits of the law, which were akin to the

4 certainty of a favorable final judgment. Id. at 430-31. It reasoned, “the revival of a substantial

5 contingent liability immediately and directly affects the borrowing power, financial strength, and

6 fiscal planning of the potential obligor” and constitutes an injury-in-fact. Id. at 430-31.

7

While President Clinton’s cancellation in City of New York revived a contingent liability,

8 President Trump’s Executive Order creates a contingent liability, potentially placing hundreds of

9 millions of dollars of the Counties’ federal grants at risk. The Counties have explained the

10 concrete impact this new liability has had in disrupting their ability to budget, make decisions

11 regarding what services to provide, and plan for the future. The potential loss of funds also

12 impacts the Counties potential borrowing power and financial strength – San Francisco notes that

13 it has already received inquiries from credit rating agencies about the Executive Order and its

14 impact on San Francisco’s finances. Rosenfield Decl. ¶31. This budget uncertainty is not

15 abstract. It has caused the Counties real and tangible harms. They have adequately demonstrated

16 that budgetary uncertainty of the type threatened by the Executive Order can constitute an injury-

17 in-fact sufficient for Article III standing.

18

e. The Counties meet the requirements for pre-enforcement

standing 19

In sum, the Counties have established a well-founded fear of enforcement under the

20

Executive Order. They have demonstrated that, under their reasonable interpretation of the Order,

21

their local policies are proscribed by Section 9’s language. They have demonstrated that the

22

Government intends to enforce the Order against them specifically. And they have demonstrated

23

that their claims against the Order implicate a constitutional interest – their Tenth Amendment

24

rights to self-governance. The Counties have shown “an intention to engage in a course of

25

conduct arguably affected with a constitutional interest, but proscribed by a statute, and there

26

exists a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298. Further, the

27

Counties have demonstrated that the Order threatens to withhold federal grant money and that the

28

32

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1 threat of the Order is presently causing the Counties injury in the form of significant budget

2 uncertainty. The Counties’ well-founded fear of enforcement of Section 9(a) is sufficient to

3 demonstrate Article III standing.

4

B. Ripeness

5

The Government also argues that the Counties’ claims are not justiciable because they are

6 not “prudentially ripe.” In assessing prudential ripeness, a court considers “both the fitness of the

7 issues for judicial decision and the hardship to the parties of withholding court consideration.”

8 Abbott Labs. v. Gardner, 387 U.S. 136, 149 (9th Cir. 1989). The Supreme Court has called into

9 question “the continuing vitality of the prudential ripeness doctrine” and highlighted that

10 prudential ripeness is distinct from constitutional ripeness. Susan B. Anthony List, 134 S. Ct. at

11 2347 (holding that a claim was justiciable, even though the Court had not yet assessed its

12 prudential ripeness, because “we have already concluded that petitioners have alleged a sufficient

13 Article III injury”). Regardless, the Counties’ claims meet the “fitness” and “hardship” factors of

14 prudential ripeness.

15

“A claim is fit for decision if the issues raised are primarily legal, do not require further

16 factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible,

17 874 F.2d 624, 627 (9th Cir. 1989). The Government asserts that the Counties’ claims are not yet

18 fit for review because “[i]mplementation of Section 9 ‘rests upon [several] contingent future

19 events’– including clarification of some of its terms – and those terms may ultimately be defined

20 such as to exclude the County or its grants or otherwise to greatly diminish the Order’s

21 ‘anticipated’ impact.” SC Oppo. at 17 (citing Texas v. United States, 523 U.S. 296, 300 (1998)).

22

In Texas v. United States, Texas sought a declaration that a state provision allowing the

23 State Commissioner of Education to appoint a special master to impose sanctions against school

24 districts falling below the state’s accreditation requirements did not violate Section 5 of the Voting

25 Rights Act. 523 U.S. at 299. The Court concluded that this claim was not ripe for review because

26 the relevant statute would only come into play if a school district fell below the state’s standard, if

27 the Commissioner had unsuccessfully attempted to impose a number of other less intrusive

28 measures first, and if the Commissioner then decided a special master was necessary. Id. at 300. 33

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1 Given the various uncertain future events, and that the state could not identify any school district

2 to which the Commissioner was likely to appoint a special master, the Court concluded that the

3 claim was not yet fit for review. Id.

4

The Government argues that, because it must still determine what the terms of the Order

5 mean and how it will enforce it, the Counties’ claims are not fit for review, just like the state’s

6 claim in Texas. This argument is not convincing. The “contingent future events” the Government

7 identifies are always at issue in a pre-enforcement case; before actual enforcement occurs the

8 enforcing agency must determine what the statute means and to whom it applies. Under the

9 Government’s line of reasoning, virtually all pre-enforcement cases would be non-justiciable on

10 prudential ripeness grounds. But the possibility that the Government “may” choose to interpret

11 the Order’s broad language narrowly or “may” choose not to enforce it against the Counties does

12 not justify deferring review. This is especially true here because, as the Counties highlight, the

13 uncertainty concerning how the Government will enforce the Order is currently causing them

14 injury. Given the statements of the President and Attorney General, the Counties have every

15 reason to be concerned about budgeting decisions, are struggling to determine whether to continue

16 to provide, or cut services, and are expending time and resources planning for the contingency of

17 losing federal funds. The Counties challenge the Executive Order as written; a decision to enforce

18 it sparingly cannot impact whether it is unconstitutional on its face. The Counties’ claims do not

19 require further factual development, are legal in nature, and are brought against a final Executive

20 Order. They are fit for review.

21

“To meet the hardship requirement, a litigant must show that withholding review would

22 result in direct and immediate hardship and would entail more than possible financial loss.”

23 Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989) (internal quotation marks

24 omitted). The Government argues that the “uncertainties surrounding the implementation of

25 Section 9 and the need for ‘factual development’ greatly outweigh any ‘hardship’ to the Count[ies]

26 from awaiting those developments.” SC Oppo. at 17-18. But the “uncertainties” created by the

27 broad, vague language of the Order, its unconstitutional directives, and the comments of the

28 President and Attorney General about what type of conduct and which jurisdictions it targets are 34

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1 causing the Counties present harm. Without clarity the Counties do not know whether they should

2 start slashing essential programs or continue to spend millions of dollars and risk a financial crisis

3 in the near future. They are forced to choose “between taking immediate action to [their]

4 detriment and risking substantial future penalties for non-compliance.” Chamber of Commerce of

5 U.S. v. Reich, 57 F.3d 1099, 1100-01 (D.C. Cir. 1995). Waiting for the Government to decide

6 how it wants to apply the Order would only cause more hardship and would not resolve the legal

7 question at issue: whether Section 9(a) as written is unconstitutional. The Counties’ claims are

8 prudentially ripe.

9

The Counties have established Article III standing and their claims are justiciable. They

10 have also demonstrated that their claims are prudentially ripe for review.

11 II. LIKELIHOOD OF SUCCESS ON THE MERITS

12

The Counties challenge the Executive Order on several constitutional grounds and bear the

13 burden of demonstrating a likelihood of success on the merits. The Government presents no

14 defense to these constitutional arguments; it focused on standing and ripeness. I conclude that the

15 Counties have demonstrated likely success on the merits in several ways.

16

A. Separation of Powers

17

The Counties argue that the Executive Order is unconstitutional because it seeks to wield

18 powers that belong exclusively to Congress, the spending powers. Article I of the Constitution

19 grants Congress the federal spending powers. See U.S. Const. art. I, § 8, cl. 1. “Incident to this

20 power, Congress may attach conditions on the receipt of federal funds, and has repeatedly

21 employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys

22 upon compliance by the recipient with federal statutory and administrative directives.’ ” South

23 Dakota v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

24 (emphasis added). While the President may veto a Congressional enactment under the

25 Presentment Clause, he must “either ‘approve all the parts of a Bill, or reject it in toto.’ ” City of

26 New York, 524 U.S. at 438 (quoting 33 Writings of George Washington 96 (J. Fitzpatrick ed.,

27 1940)). He cannot “repeal[] or amend[] parts of duly enacted statues” after they become law. Id.

28 at 439. 35

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1

This is true even if Congress has attempted to expressly delegate such power to the

2 President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,

3 which sought to grant the President the power to cancel particular direct spending and tax benefit

4 provisions in bills, was unconstitutional as it ran afoul of the “ ‘finely wrought’ procedures

5 commanded by the Constitution” for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.

6 919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to

7 spend appropriated funds, any delegation and discretion is cabined by these constitutional

8 boundaries.

9

After a bill becomes law, the President is required to “take Care that the Law be faithfully

10 executed.” See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give the President

11 discretion in allocating funds, the President has no constitutional authority to withhold such funds

12 and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.

13 See City of New York, 524 U.S. at 439; U.S. Const. art. I, § 8, cl. 1. Further, “[w]hen the President

14 takes measures incompatible with the expressed or implied will of Congress, his power is at its

15 lowest ebb . . .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

16 concurring). Congress has intentionally limited the ability of the President to withhold or

17 “impound” appropriated funds and has provided that the President may only do so after following

18 particular procedures and after receiving Congress’s express permission. See Impoundment

19 Control Act of 1974, 2 U.S.C. §§ 683 et seq.

20

The Executive Order runs afoul of these basic and fundamental constitutional structures.

21 The Order’s stated purpose is to “ensure that jurisdictions that fail to comply with applicable

22 Federal law do not receive Federal funds, except as mandated by law.” EO §2. To effectuate this

23 purpose, the Order directs that “the Attorney General and the Secretary, in their discretion and to

24 the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

25 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

26 necessary for law enforcement purposes by the Attorney General or the Secretary.” EO §9(a).

27 Section 9 purports to give the Attorney General and the Secretary the power to place a new

28 condition on federal funds (compliance with Section 1373) not provided for by Congress. But the 36

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1 President does not have the power to place conditions on federal funds and so cannot delegate this

2 power.

3

Section 9 is particularly problematic as Congress has repeatedly, and frequently, declined

4 to broadly condition federal funds or grants on compliance with Section 1373 or other federal

5 immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of

6 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

7 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary

8 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the President’s power

9 “at its lowest ebb.” Youngstown, 343 U.S. at 637. The Order’s attempt to place new conditions on

10 federal funds is an improper attempt to wield Congress’s exclusive spending power and is a

11 violation of the Constitution’s separation of powers principles.

12

B. Spending Clause Violations

13

The Counties also argue that, even if the President had the spending power, the Executive

14 Order would be unconstitutional under the Tenth Amendment as it exceeds those powers. The

15 Counties are likely to succeed on this claim as well.

16

While Congress has significant authority to encourage policy through its spending power,

17 the Supreme Court has articulated a number of limitations to the conditions Congress can place on

18 federal funds. The Executive Order likely violates at least three of these restrictions: (1)

19 conditions must be unambiguous and cannot be imposed after funds have already been accepted;

20 (2) there must be a nexus between the federal funds at issue and the federal program’s purpose;

21 and (3) the financial inducement cannot be coercive.

22

1. Unambiguous Requirement

23

When Congress places conditions on federal funds “it must do so unambiguously” so that

24 states and local jurisdictions contemplating whether to accept such funds can “exercise their

25 choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 203

26 (internal quotation marks omitted). Because states must opt-in to a federal program willingly,

27 fully aware of the associated conditions, Congress cannot implement new conditions after-the-fact.

28 See Nat’l Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602-04 (2012). “The 37

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1 legitimacy of Congress’s exercise of the spending power thus rests on whether the state

2 voluntarily and knowingly accepts the terms of the contract” at the time Congress offers the

3 money. Id. at 2602.

4

The Executive Order purports to retroactively condition all “federal grants” on compliance

5 with Section 1373. As this condition was not an unambiguous condition that the states and local

6 jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it

7 cannot be imposed now by the Order. In addition, while the Order’s language refers to all federal

8 grants, the Government’s lawyers say it only applies to three grants issued through the

9 Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties

10 cannot voluntarily and knowingly choose to accept the conditions on those funds.

11

Finally, as discussed infra in Section II.D., the Order’s vague language does not make

12 clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid its

13 penalties. See discussion re vagueness infra Section II.D. The unclear and untimely conditions in

14 the Executive Order fail the “unambiguous” restriction because the Order does not make clear to

15 states and local governments what funds are at issue and what conditions apply to those funds,

16 making it impossible for them to “voluntarily and knowingly accept[] the terms of the contract.”

17 NFIB, 132 S. Ct. at 2602.

18

2. Nexus Requirement

19

The conditions placed on congressional spending must have some nexus with the purpose

20 of the implicated funds. “Congress may condition grants under the spending power only in ways

21 reasonable related to the purpose of the federal program.” Dole, 483 U.S. at 213. This means that

22 funds conditioned on compliance with Section 1373 must have some nexus to immigration

23 enforcement.

24

The Executive Order’s attempt to condition all federal grants on compliance with Section

25 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and

26 most categories of federal funding, including without limitation funding related to Medicare,

27 Medicaid, transportation, child welfare services, immunization and vaccination programs, and

28 emergency preparedness. The Executive Order inverts the nexus requirement, directing the 38

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1 Attorney General and Secretary to cut off all federal grants to “sanctuary jurisdictions” but giving

2 them discretion to allow “sanctuary jurisdictions” to receive grants “deemed necessary for law

3 enforcement purposes.” EO § 9(a). As the subset of grants “deemed necessary for law

4 enforcement purposes” likely includes any federal funds related to immigration enforcement, the

5 Executive Order expressly targets for defunding grants with no nexus to immigration enforcement

6 at all. This is the precise opposite of what the nexus test requires.

7

3. Not Coercive Requirement

8

Finally, Congress cannot use the spending power in a way that compels local jurisdictions

9 to adopt certain policies. Congress cannot offer “financial inducement . . . so coercive as to pass

10 the point at which pressure turns to compulsion.” Dole, 483 U.S. at 211 (internal quotation marks

11 omitted). Legislation that “coerces a State to adopt a federal regulatory system as its own” “runs

12 contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602. States must have a “legitimate

13 choice whether to accept the federal conditions in exchange for federal funds.” Id. at 2602-2603.

14

In NFIB, the Supreme Court concluded that the Affordable Care Act’s threat of denying

15 Medicaid funds, which constituted over 10 percent of the State’s overall budget, was

16 unconstitutionally coercive and represented a “gun to the head.” Id. at 2604. The Executive Order

17 threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on

18 which the Counties rely. The threat is unconstitutionally coercive.

19

C. Tenth Amendment Violations

20

The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to

21 conscript states and local jurisdictions into carrying out federal immigration law. The Counties

22 are likely to succeed on this claim as well.

23

“The Federal Government may not compel the States to enact or administer a federal

24 regulatory program.” New York, 505 U.S. at 188. “The Federal Government may neither issue

25 directives requiring the States to address particular problems, nor command the States’ officers, or

26 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz

27 v. United States, 521 U.S. 898, 935 (1997). “That is true whether Congress directly commands a

28 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” 39

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1 NFIB, 132 S. Ct. at 2602.

2

As discussed with regard to the Counties’ standing arguments, the Counties have

3 demonstrated that under their reasonable interpretation, the Order equates “sanctuary

4 jurisdictions” with “any jurisdiction that ignored or otherwise failed to honor any detainers” and

5 therefore places such jurisdictions at risk of losing all federal grants. See EO §9(b). The Counties

6 have shown that losing all of their federal grant funding would have significant effects on their

7 ability to provide services to their residents and that they may have no legitimate choice regarding

8 whether to accept the government’s conditions in exchange for those funds. To the extent the

9 Executive Order seeks to condition all federal grants on honoring civil detainer requests, it is

10 likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local

11 jurisdictions to enforce a federal regulatory program through coercion.

12

Even if the Order does not condition federal grants on honoring detainer requests, it

13 certainly seeks to compel states and local jurisdictions to comply with civil detainers by directing

14 the Attorney General to “take appropriate enforcement action against any entity that violates 8

15 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

16 enforcement of Federal law.” EO §9(a). Although the Order provides no further clarification on

17 what this “enforcement” might entail or what policies might “hinder[] the enforcement of Federal

18 law,” Attorney General Sessions, who is tasked with implementing this provision, has equated

19 failure to honor civil detainer requests with policies that “frustrate th[e] enforcement of

20 immigration laws.” See Sessions Press Conference at 2. Reading the Order in light of the

21 Attorney General’s public statements, it threatens “enforcement action” against any jurisdiction

22 that refuses to comply with detainer requests or otherwise fails to enforce federal immigration law.

23 While this threat of “enforcement” is left vague and unexplained, “enforcement” by its own

24 definition means to “compel[] compliance.” See BLACK’S LAW DICTIONARY 645 (10th ed. 2014)

25 (defining “enforcement” as “The act or process of compelling compliance with a law, mandate,

26 command, decree, or agreement.”) By seeking to compel states and local jurisdictions to honor

27 civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth

28 Amendment’s provisions against conscription. 40

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1

The Supreme Court has repeatedly held that, “The Federal Government cannot compel the

2 States to enact or administer a federal regulatory program.” New York, 505 U.S. at 188. The

3 Government cannot command them to adopt certain policies, id. at 188, command them to carry

4 out federal programs, Printz, 521 U.S. at 935, or otherwise to “coerce them into adopting a federal

5 regulatory system as their own,” NFIB, 132 S. Ct. at 2602. The Executive Order uses coercive

6 means in an attempt to force states and local jurisdictions to honor civil detainer requests, which

7 are voluntary “requests” precisely because the federal government cannot command states to

8 comply with them under the Tenth Amendment. The Executive Order attempts to use coercive

9 methods to circumvent the Tenth Amendment’s direct prohibition against conscription. While the

10 federal government may incentivize states to adopt federal programs voluntarily, it cannot use

11 means that are so coercive as to compel their compliance. The Executive Order’s threat to pull all

12 federal grants from jurisdictions that refuse to honor detainer requests or to bring “enforcement

13 action” against them violates the Tenth Amendment’s prohibitions against commandeering.

14

D. Fifth Amendment Void for Vagueness

15

The Counties assert that the Executive Order is unconstitutionally vague in violation of the

16 Fifth Amendment’s Due Process Clause. A law is unconstitutionally vague and void under the

17 Fifth Amendment if it fails to make clear what conduct it prohibits and if it fails to lay out clear

18 standards for enforcement. See Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To

19 satisfy due process we insist that laws (1) “give the person of ordinary intelligence a reasonable

20 opportunity to know what is prohibited, so that he may act accordingly” and (2) “provide explicit

21 standards for those who apply them.” Id. The Executive Order does not meet either of these

22 requirements.

23

The Executive Order does not make clear what conduct might subject a state or local

24 jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to

25 determine how to modify their conduct, if at all, to avoid the Order’s penalties. The Order clearly

26 directs the Attorney General and Secretary to ensure that jurisdictions that “willfully refuse to

27 comply” with Section 1373, “sanctuary jurisdictions,” are not eligible to receive federal grants.

28 The Government repeatedly emphasizes in its briefing that it does not know what it means to 41

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1 “willfully refuse to comply” with Section 1373. See, SC Oppo. at 11. Past DOJ guidance and

2 various court cases interpreting Section 1373 have not reached consistent conclusions as to what

3 1373 requires. In the face of conflicting guidance, and no clear standard from the Government,

4 jurisdictions do not know how to avoid the Order’s defunding penalty.

5

Further, because the Order does not clearly define “sanctuary jurisdictions” the conduct

6 that will subject a jurisdiction to defunding under the Order is not fully outlined. This is further

7 complicated because the Order gives the Secretary unlimited discretion to make “sanctuary

8 jurisdiction” designations. But, at least as of two months ago, the Secretary himself stated that he

9 “do[esn’t] have a clue” how to define “sanctuary city.” Harris Decl. ex. D (Dep’t of Homeland

10 Sec., Pool Notes from Secretary Kelly’s Trip to San Diego, Feb. 10, 2017) at 3 (SC Dkt. No. 36-

11 4). If the Secretary has unbounded discretion to designate “sanctuary jurisdictions” but has no

12 idea how to define that term, states and local jurisdictions have no hope of deciphering what

13 conduct might result in an unfavorable “sanctuary jurisdiction” designation.

14

In addition, the Order directs the Attorney General to take “appropriate enforcement

15 action” against any jurisdiction that willfully refuses to comply with Section 1373 or otherwise

16 has a policy or practice that “hinders the enforcement of Federal law.” This provision vastly

17 expands the scope of the Order. What does it mean to “hinder” the enforcement of federal law?

18 What federal law is at issue: immigration laws? All federal laws? The Order offers no

19 clarification.

20

The Order also fails to provide clear standards to the Secretary and the Attorney General to

21 prevent “arbitrary and discriminatory enforcement.” Id. As discussed above, the Order gives the

22 Secretary discretion to designate jurisdictions as “sanctuary jurisdictions” to the extent consistent

23 with law. But there are no laws, besides the Order, outlining what a sanctuary jurisdiction is,

24 leaving the Secretary with unfettered discretion and the Order’s vague language to make

25 “sanctuary jurisdiction” designations. Similarly, the Order directs the Attorney General to take

26 “appropriate enforcement action” against any jurisdiction that “hinders the enforcement of Federal

27 law.” This expansive, standardless language creates huge potential for arbitrary and

28 discriminatory enforcement, leaving the Attorney General to figure out what “appropriate 42

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1 enforcement action” might entail and what policies and practices might “hinder[] the enforcement

2 of Federal law.” This language is “so standardless that it authorizes or encourages seriously

3 discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

4

The Order gives the Counties no clear guidance on how to comply with its provisions or

5 what penalties will result from non-compliance. Its standardless guidance and enforcement

6 provisions are also likely to result in arbitrary and discriminatory enforcement. It does not “give

7 the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

8 may act accordingly.” Gaynard, 408 U.S. at 108. The Counties are likely to succeed in their

9 argument that Section 9(a) is void for vagueness under the Fifth Amendment.

10

E. Fifth Amendment Procedural Due Process Violations

11

The Counties assert that the Executive Order fails to provide them with procedural due

12 process in violation of the Fifth Amendment. To sustain a valid procedural due process claim a

13 person must demonstrate that he has a legally protectable property interest and that he has suffered

14 or will suffer a deprivation of that property without adequate process. See Thorton v. City of St.

15 Helens, 425 F.3d 1158, 1164 (9th Cir. 2005).

16

To have a legitimate property interest, a person “must have more than a unilateral

17 expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v.

18 Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement

19 to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132

20 S. Ct. at 2602 (“The legitimacy of Congress’ power to legislate under the spending power [] rests

21 on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”). The

22 Counties have a legitimate property interest in federal funds that Congress has already

23 appropriated and that the Counties have accepted.

24

The Executive Order purports to make the Counties ineligible to receive these funds

25 through a discretionary and undefined process. The Order directs the Attorney General and

26 Secretary to designate various states and local jurisdictions as “sanctuary jurisdictions,” ensure

27 that such jurisdictions are “not eligible” to receive federal grants, and “take enforcement action”

28 against them. EO §9(a). It does not direct the Attorney General or Secretary to provide 43

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1 “sanctuary jurisdictions” with any notice of an unfavorable designation or impending cut to

2 funding. And it does not set up any administrative or judicial procedure for states and local

3 jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against

4 them under the Order. This complete lack of process violates the Fifth Amendment’s due process

5 requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (“The essence of due process is the

6 requirement that a person in jeopardy of serious loss be given notice of the case against him and

7 opportunity to meet it.”) (internal alterations and quotations omitted).

8

The Government’s only defense of the Order’s lack of process is to claim that Section 9’s

9 provision that it be implemented “consistent with law” reads in all necessary procedural

10 requirements. Again, the Government’s attempt to resolve all of the Order’s constitutional

11 infirmities with a “consistent with law” bandage is not convincing. There is no dispute that while

12 the Order commands the Secretary to designate certain jurisdictions as ineligible for federal grants

13 and directs the Attorney General to bring an “enforcement action” against them, it provides no

14 process at all for notifying jurisdictions about such a determination and provides them no

15 opportunity to be heard. The Counties are likely to succeed on their claim that the Order fails to

16 provide adequate due process in violation of the Fifth Amendment.

17 III. IRREPARABLE HARM

18

The Counties assert that, absent an injunction enjoining Section 9, they are likely to suffer

19 irreparable harm resulting from their current budget uncertainty. Alternatively, they argue that

20 they are suffering a constitutional injury, as the Order improperly seeks to coerce them into

21 changing their policies in violation of the Tenth Amendment. The Counties have adequately

22 demonstrated that they are likely to suffer irreparable harm under both of these theories.

23

A. Budgetary Uncertainty

24

The Counties allege that they are currently suffering irreparable injury resulting from the

25 substantial uncertainty caused by the Order’s unclear terms and its broad and undefined scope. As

26 discussed above, this uncertainty is causing the Counties present injury sufficient to satisfy Article

27 III’s standing requirements. See discussion supra Section I.A.2.d.

28

This budget uncertainty is also causing the Counties irreparable harm, and it will continue

44

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1 to do so absent an injunction. The Order’s uncertainty interferes with the Counties’ ability to

2 budget, plan for the future, and properly serve their residents. Without clarification regarding the

3 Order’s scope or legality, the Counties will be obligated to take steps to mitigate the risk of losing

4 millions of dollars in federal funding, which will include placing funds in reserve and making cuts

5 to services. These mitigating steps will cause the Counties irreparable harm. See United States v.

6 North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 2016) (there was irreparable harm where the

7 unavailability of funds was “likely to have an immediate impact on [the state’s] ability to provide

8 critical resources to the public, causing damage that would persist regardless of whether funding

9 [was] subsequently reinstated”).

10

Although Government counsel has represented that the Order will be implemented

11 consistent with law, this assurance is undermined by Section 9(a)’s clearly unconstitutional

12 directives. Further, through public statements, the President and Attorney General have appeared

13 to endorse the broadest reading of the Order. Is the Order merely a rhetorical device, as counsel

14 suggested at the hearing, or a “weapon” to defund the Counties and those who have implemented a

15 different law enforcement strategy than the Government currently believes is desirable? The

16 result of this schizophrenic approach to the Order is that the Counties’ worst fears are not allayed

17 and the Counties reasonably fear enforcement under the Order.

18

The Order’s broad directive and unclear terms, and the President’s and Attorney General’s

19 endorsement of them, has caused substantial confusion and justified fear among states and local

20 jurisdictions that they will lose all federal grant funding at the very least. The threat of the Order

21 and the uncertainty it is causing impermissibly interferes with the Counties’ ability to operate, to

22 provide key services, to plan for the future, and to budget. The Counties have established that,

23 absent an injunction, they are likely to suffer irreparable harm.

24

B. Constitutional Injury

25

The Counties also argue that they are likely to suffer irreparable harm because the

26 Executive Order contravenes the separation of powers, conscripts the Counties to carry out federal

27 immigration enforcement policies, and seeks to coerce the Counties into changing their local

28 policies by imposing overwhelming financial penalties without due process. This “constitutional 45

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1 injury” also constitutes irreparable harm.

2

The Ninth Circuit has repeatedly held that “the deprivation of constitutional rights

3 ‘unquestionably constitutes irreparable injury.’ ” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

4 Cir. 2012); Rodriguez v. Robbins, 715 F.3d 1127, 1144-45 (9th Cir. 2013). A plaintiff can suffer a

5 constitutional injury by being forced to comply with an unconstitutional law or else face financial

6 injury or enforcement action. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

7 1046, 1058-59 (9th Cir. 2009) (plaintiffs were injured where they were faced with the choice of

8 signing unconstitutional agreements or facing a loss of customer goodwill and significant

9 business). The Supreme Court has similarly indicated that plaintiffs suffer irreparable injury

10 under such circumstances. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 380-381

11 (1992) (injunctive relief was available where “respondents were faced with a Hobson’s choice:

12 continually violate the Texas law and expose themselves to potentially huge liability; or violate

13 the law once as a test case and suffer the injury of obeying the law during the pendency of the

14 proceedings and any further review”). Where an executive action causes constitutional injuries,

15 injunctive relief is appropriate. See Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017)

16 (refusing to stay a preliminary injunction on Executive Order 13769 and reaffirming that a

17 “deprivation of constitutional rights unquestionably constitutes irreparable injury”).

18

The Counties currently must choose either to attempt to comply with the Executive Order,

19 which they have alleged is unconstitutional under the Constitution’s separation of powers

20 structures and violates their Tenth and Fifth Amendment rights, or to defy the Order and risk

21 losing hundreds of millions of dollars in federal grants. By forcing the Counties to make this

22 unreasonable choice, the Order results in a constitutional injury sufficient to establish standing and

23 irreparable harm.

24

The Government argues that while a “deprivation of constitutional rights unquestionably

25 constitutes irreparable injury,” the Counties have not alleged a “deprivation” of their constitutional

26 rights but have instead alleged a violation of the constitutional structures that govern relationships

27 among the branches of the Federal Government. It asserts that there is a distinction between

28 violations of personal constitutional rights and violations of structural provisions. See N.Y. State 46

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United States District Court Northern District of California

1 Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 367 (S.D.N.Y. 2008) (“[W]hile a

2 violation of constitutional rights can constitute per se irreparable harm . . . per se irreparable harm

3 is caused only by violations of ‘personal’ constitutional rights . . . to be distinguished from

4 provisions of the Constitution that serve ‘structural’ purposes, like the Supremacy Clause.”).

5

This argument fails for two reasons. First, this distinction between personal and structural

6 constitutional rights is not recognized in the Ninth Circuit. Although the Government cites to

7 American Trucking Ass’ns v. City of Los Angeles, 577 F. Supp. 2d 1110, 1127 (C.D. Cal. 2008) for

8 the proposition that “in the case of Supremacy Clause violations,” the presumption of irreparable

9 harm “is not necessarily warranted,” that case was reversed by the Ninth Circuit. On appeal the

10 court concluded that, even where the constitutional injury is structural, “the constitutional

11 violation alone, coupled with the damages incurred, can suffice to show irreparable harm.”

12 American Trucking, 559 F.3d at 1058. Second, the Counties have alleged a deprivation of their

13 personal constitutional rights; they have alleged that the Executive Order is unconstitutionally

14 coercive in violation of the Tenth Amendment and fails to provide them with Due Process in

15 violation of the Fifth Amendment. The Government’s challenges to the Counties’ claims of

16 constitutional injury are not supported by the facts of this case or the precedent that is binding on

17 this court.

18

The Counties have adequately demonstrated a constitutional injury sufficient to establish a

19 likelihood of irreparable harm.

20 IV. BALANCE OF HARMS AND PUBLIC INTEREST

21

A party seeking a preliminary injunction must “establish . . . that the balance of equities

22 tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. When the

23 federal government is a party, these factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

24

The Government argues that the balance of harms and the public interest weigh against a

25 preliminary injunction because the “most pertinent and concretely expressed public interest” in

26 this case is contained in Section 1373, and Section 9 simply seeks to ensure compliance with that

27 section. This argument is unconvincing given the Government’s flawed argument that Section 9

28 does not change the law. If Section 9 does not change the law, or if the Government does not 47

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1 intend to enforce Section 9’s unlawful directives, then it provides the Government with no

2 concrete benefit but to highlight the President’s enforcement priorities. The President certainly

3 has the right to use the bully pulpit to encourage his policies. But Section 9(a) is not simply

4 rhetorical. The Counties have a strong interest in avoiding unconstitutional federal enforcement

5 and the significant budget uncertainty that has resulted from the Order’s broad and threatening

6 language. To the extent the Government wishes to use all lawful means to enforce 8 U.S.C. 1373,

7 it does not need Section 9(a) to do so. The confusion caused by Section 9(a)’s facially

8 unconstitutional directives and its coercive effects weigh heavily against leaving it in place. The

9 balance of harms weighs in favor of an injunction.

10 V. 11

NATIONWIDE INJUNCTION The Government argues that, if an injunction is issued, it should be issued only with

12 regards to the plaintiffs and should not apply nationwide. But where a law is unconstitutional on

13 its face, and not simply in its application to certain plaintiffs, a nationwide injunction is

14 appropriate. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive

15 relief is dictated by the extent of the violation established, not by the geographical extent of the

16 plaintiff.”); Washington, 847 F.3d at 1166-67 (affirming nationwide injunction against executive

17 travel ban order). The Counties have demonstrated that they are likely to succeed on their claims

18 that the Executive Order purports to wield powers exclusive to Congress, and violates the Tenth

19 and Fifth Amendments. These constitutional violations are not limited to San Francisco or Santa

20 Clara, but apply equally to all states and local jurisdictions. Given the nationwide scope of the

21 Order, and its apparent constitutional flaws, a nationwide injunction is appropriate.

22 VI. INJUNCTION AGAINST THE PRESIDENT

23

The Government also argues that, if an injunction is issued, it should not issue against the

24 President. An injunction against the President personally is an “extraordinary measure not lightly

25 to be undertaken.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); see Newdow v. Bush, 391

26 F. Supp. 2d 95, 106 (D.D.C. 2005) (“[T]he Supreme Court has sent a clear message that an

27 injunction should not be issued against the President for official acts.”). The Counties assert that

28 the court “has discretion to determine whether the constitutional violations in the Executive Order 48

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1 may be remedied by an injunction against the named inferior officers, or whether this is an

2 extraordinary circumstance where injunctive relief against the President himself is warranted.”

3

I conclude that an injunction against the President is not appropriate. The Counties seek to

4 enjoin the Executive Order which directs the Attorney General and the Secretary to carry out the

5 provisions of Section 9. The President has no role in implementing Section 9. It is not clear how

6 an injunction against the President would remedy the constitutional violations the Counties have

7 alleged. On these facts, the extraordinary remedy of enjoining the President himself is not

8 appropriate.

9

CONCLUSION

10

The Counties have demonstrated that they are likely to succeed on the merits of their

11 challenge to Section 9(a) of the Executive Order, that they will suffer irreparable harm absent an

12 injunction, and that the balance of harms and public interest weigh in their favor. The Counties’

13 motions for a nationwide preliminary injunction, enjoining enforcement of Section 9(a), are

14 GRANTED. The defendants (other than the President) are enjoined from enforcing Section 9(a)

15 of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction

16 does not impact the Government’s ability to use lawful means to enforce existing conditions of

17 federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or

18 preparing guidance on designating a jurisdiction as a “sanctuary jurisdiction.”

19

IT IS SO ORDERED.

20 Dated: April 25, 2017

21

22

23

William H. Orrick United States District Judge

24

25

26

27

28 49

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

ORDER GRANTING THE COUNTY OF SANTA CLARA'S AND CITY AND COUNTY OF SAN FRANCISCO'S MOTIONS TO ENJOIN SECTION 9(a) OF EXECUTIVE ORDER 13768
Case No. 17-cv-00574-WHO

12 CITY AND COUNTY OF SAN
13 FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, et al.,

Case No. 17-cv-00485-WHO

17

Defendants.

18

INTRODUCTION

19

This case involves Executive Order 13768, “Enhancing Public Safety in the Interior of the

20 United States,” which, in addition to outlining a number of immigration enforcement policies,

21 purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not

22 receive Federal funds, except as mandated by law” and to establish a procedure whereby

23 “sanctuary jurisdictions” shall be ineligible to receive federal grants. Executive Order 13768, 82

24 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). In two related actions, the County of

25 Santa Clara and the City and County of San Francisco have challenged Section 9 of the Executive

26 Order as facially unconstitutional and have brought motions for preliminary injunction seeking to

27 enjoin its enforcement. See County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and

28 County of San Francisco v. Trump, 17-cv-0485-WHO.

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United States District Court Northern District of California

1

The Counties challenge the enforcement provision of the Order, Section 9(a), on several

2 grounds: first, it violates the separation of powers doctrine enshrined in the Constitution because it

3 improperly seeks to wield congressional spending powers; second, it is so overbroad and coercive

4 that even if the President had spending powers, the Order would clearly exceed them and violate

5 the Tenth Amendment’s prohibition against commandeering local jurisdictions; third, it is so

6 vague and standardless that it violates the Fifth Amendment’s Due Process Clause and is void for

7 vagueness; and, finally, because it seeks to deprive local jurisdictions of congressionally allocated

8 funds without any notice or opportunity to be heard, it violates the procedural due process 9 requirements of the Fifth Amendment.1

10

The Government does not respond to the Counties’ constitutional challenges but argues

11 that the Counties lack standing because the Executive Order did not change existing law and

12 because the Counties have not been named “sanctuary jurisdictions” pursuant to the Order. It

13 explained for the first time at oral argument that the Order is merely an exercise of the President’s

14 “bully pulpit” to highlight a changed approach to immigration enforcement. Under this

15 interpretation, Section 9(a) applies only to three federal grants in the Departments of Justice and

16 Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This

17 interpretation renders the Order toothless; the Government can already enforce these three grants

18 by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the

19 terms of existing law. Counsel disavowed any right through the Order for the Government to

20 affect any other part of the billions of dollars in federal funds the Counties receive every year.

21

It is heartening that the Government’s lawyers recognize that the Order cannot do more

22 constitutionally than enforce existing law. But Section 9(a), by its plain language, attempts to

23

24 1 San Francisco also brings a facial challenge to 8 U.S.C. § 1373, arguing that the statute is

25

unconstitutional under the Tenth Amendment because “the whole object” of that section is to “direct the functioning” of state governments. It seeks an injunction enjoining enforcement of

26

Section 1373, or alternatively, because it believes it complies with Section 1373, an injunction preventing the Government from taking adverse action against it on the basis that it has failed to

27

comply with that Section. Briefing on this issue was intermingled with the attack on the Executive Order, and did not adequately address the important issues raised. At the Case Management

28

Conference on May 2, 2017, at 1:30 p.m. we will discuss litigation of this portion of the City’s case.

2

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1 reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is

2 broader still, addressing all federal funding. And if there was doubt about the scope of the Order,

3 the President and Attorney General have erased it with their public comments. The President has

4 called it “a weapon” to use against jurisdictions that disagree with his preferred policies of

5 immigration enforcement, and his press secretary has reiterated that the President intends to ensure

6 that “counties and other institutions that remain sanctuary cites don’t get federal government

7 funding in compliance with the executive order.” The Attorney General has warned that

8 jurisdictions that do not comply with Section 1373 would suffer “withholding grants, termination

9 of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds

10 previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation

11 offered at the hearing.

12

Although the Government’s new interpretation of the Order is not legally plausible, in

13 effect it appears to put the parties in general agreement regarding the Order’s constitutional

14 limitations. The Constitution vests the spending powers in Congress, not the President, so the

15 Order cannot constitutionally place new conditions on federal funds. Further, the Tenth

16 Amendment requires that conditions on federal funds be unambiguous and timely made; that they

17 bear some relation to the funds at issue; and that the total financial incentive not be coercive.

18 Federal funding that bears no meaningful relationship to immigration enforcement cannot be

19 threatened merely because a jurisdiction chooses an immigration enforcement strategy of which

20 the President disapproves.

21

To succeed in their motions, the Counties must show that they are likely to face immediate

22 irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the

23 balance of harms and public interest weighs in their favor. The Counties have met this burden.

24 They have demonstrated that they have standing to challenge the Order and are currently suffering

25 irreparable harm, not only because the Order has caused and will cause them constitutional

26 injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth

27 Amendment rights, but also because the Order has caused budget uncertainty by threatening to

28 deprive the Counties of hundreds of millions of dollars in federal grants that support core services 3

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1 in their jurisdictions. They have established that they are likely to succeed on the merits of their

2 claims and that the balance of harms and public interest decisively weigh in favor of an injunction.

3 The Counties’ motions for preliminary injunction against Section 9(a) of the Executive Order are

4 GRANTED as further described below.

5

That said, this injunction does nothing more than implement the effect of the

6 Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney

7 General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does

8 it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary

9 jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from

10 exercising Section 9(a) in a way that violates the Constitution.

11

BACKGROUND

12 I. 13

THE EXECUTIVE ORDER On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

14 “Enhancing Public Safety in the Interior of the United States.” See Harris Decl. ¶ 2; Ex. A (“EO”)

15 (SC Dkt. No. 36-1). In outlining the Executive Order’s purpose, Section 1 reads, in part,

16 “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to

17 shield aliens from removal from the United States.” EO §1. Section 2 states that the policy of the

18 executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law

19 do not receive Federal funds, except as mandated by law.” EO §2(c).

20

Section 9, titled “Sanctuary Jurisdictions” lays out this policy in more detail. It reads:

21

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive

branch to ensure, to the fullest extent of the law, that a State, or a

22

political subdivision of a State, shall comply with 8 U.S.C. 1373.

23

(a) In furtherance of this policy, the Attorney General and the

Secretary, in their discretion and to the extent consistent with law,

24

shall ensure that jurisdictions that willfully refuse to comply with 8

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

25

Federal grants, except as deemed necessary for law enforcement

purposes by the Attorney General or the Secretary. The Secretary

26

has the authority to designate, in his discretion and to the extent

consistent with law, a jurisdiction as a sanctuary jurisdiction. The

27

Attorney General shall take appropriate enforcement action against

any entity that violates 8 U.S.C. 1373, or which has in effect a

28

statute, policy, or practice that prevents or hinders the enforcement

4

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of Federal law. 1

(b) To better inform the public regarding the public safety threats

2

associated with sanctuary jurisdictions, the Secretary shall utilize the

Declined Detainer Outcome Report or its equivalent and, on a

3

weekly basis, make public a comprehensive list of criminal actions

committed by aliens and any jurisdiction that ignored or otherwise

4

failed to honor any detainers with respect to such aliens.

5

(c) The Director of the Office of Management and Budget is

directed to obtain and provide relevant and responsive information

6

on all Federal grant money that currently is received by any

sanctuary jurisdiction. 7

EO §9.

8

Section 3 of the Order, titled “Definitions,” incorporates the definitions listed in 8 U.S.C. §

9

1101. EO §3. Section 1101 does not define “sanctuary jurisdiction.” The term is not defined

10

anywhere in the Executive Order. Similarly, neither section 1101 nor the Order defines what it

11

means for a jurisdiction to “willfully refuse to comply” with Section 1373 or for a policy to

12

“prevent[] or hinder[] the enforcement of Federal law.” EO §9(a).

13

II. SECTION 1373 14
Section 1373, to which Section 9 refers, prohibits local governments from restricting 15
government officials or entities from communicating immigration status information to ICE. It 16
states in relevant part: 17

(a) In General. Notwithstanding any other provision of Federal,

18

State, or local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any government

19

entity or official from sending to, or receiving from, the Immigration

and Naturalization Service information regarding the citizenship or

20

immigration status, lawful or unlawful, of any individual.

21

(b) Additional Authority of Government Entities. Notwithstanding

any other provision of Federal, State, or local law, no person or

22

agency may prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect to

23

information regarding the immigration status, lawful or unlawful, of

any individual: 24

(1) Sending such information to, or requesting or receiving

25

such information from, the Immigration and Naturalization

Service. 26

(2) Maintaining such information. 27

(3) Exchanging such information with any other Federal,

28

State, or local government entity.

5

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1 8 U.S.C. 1373.

2

In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant

3 programs, the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial 4 Justice Assistance Grant (“JAG”) to compliance with Section 1373.2 This guidance states that all

5 applicants for these two grant programs are required to “assure and certify compliance with all

6 applicable federal statutes, including Section 1373, as well as all applicable federal regulations,

7 policies, guidelines, and requirements.” Id. The Department has indicated that the Community

8 Oriented Policing Services Grant (COPS) is also conditioned on compliance with Section 1373.

9 III. CIVIL DETAINER REQUESTS

10

An ICE civil detainer request asks a local law enforcement agency to continue to hold an

11 inmate who is in local jail because of actual or suspected violations of state criminal laws for up to

12 48 hours after his or her scheduled release so that ICE can determine if it wants to take that

13 individual into custody. See 8 C.F.R. § 287.7; Neusel Decl. ¶9; Marquez Decl., Ex. C at 3 (SC

14 Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required

15 to honor them. See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014)

16 (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed

17 requests” because any other interpretation would render them unconstitutional under the Tenth

18 Amendment). Several courts have held that it is a violation of the Fourth Amendment for local

19 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because

20 civil detainer requests are often not supported by an individualized determination of probable

21 cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st

22 Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at

23 *9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining

24 individuals in response to a civil detainer request and does not indemnify local jurisdictions for

25

26

2 See 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,

27

2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadzik’s letter as courts may

28

judicially notice information and official documents contained on official government websites. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-999 (9th Cir. 2010).

6

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1 potential liability they could face for related Fourth Amendment violations. See 8 C.F.R. §

2 287.7(e); Marquez Decl. ¶¶ 21-15 & Exs. B-D.

3 IV. THE COUNTIES’ POLICIES

4

A. Santa Clara’s Policies

5

Santa Clara asserts that its local policies and practices with regard to federal immigration

6 enforcement are at odds with the Executive Order’s provisions regarding Section 1373. SC Mot.

7 at 5. (SC Dkt. No. 26). In 2010, the Santa Clara County Board of Supervisors adopted a

8 Resolution prohibiting Santa Clara employees from using County resources to transmit any

9 information to ICE that was collected in the course of providing critical services or benefits.

10 Marquez Decl. ¶27 (SC Dkt. No. 29) & Ex. G (SC Dkt. No. 29-7); Neusel Decl. ¶7 (SC Dkt. No.

11 31); L. Smith Decl. ¶6 (SC Dkt. No. 35). The Resolution also prohibits employees from initiating

12 an inquiry or enforcement action based solely on the individual’s actual or suspected immigration

13 status, national origin, race or ethnicity, or English-speaking ability, or from using County

14 resources to pursue an individual solely because of an actual or suspected violation of immigration

15 law. Id. In October, 2016, after receiving DOJ guidance that JAG and SCAAP funds would be

16 conditioned on compliance with Section 1373, Santa Clara decided not to participate in those

17 programs. Marquez Decl. ¶ 29 & Ex. H (SC Dkt. No. 29-8).

18

Santa Clara also asserts that its policies with regard to ICE civil detainer requests are

19 inconsistent with the Executive Order and the President’s stated immigration enforcement agenda.

20 Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an

21 average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.

22 Neusel Decl. ¶4. When the County raised concerns about the costs associated with complying

23 with detainer requests and potential civil liability, ICE confirmed that it would not reimburse the

24 County or indemnify it for the associated costs and liabilities. Marquez Decl. ¶¶ 21-15 & Exs. B-

25 D.

26

Santa Clara subsequently convened a task force and adopted a new policy where the

27 County agreed to honor requests for individuals with serious or violent felony convictions, but

28 only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl. 7

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1 ¶6; Marquez Decl. ¶26 & Ex. E. ICE has never agreed to reimburse the County for any costs, so

2 since November 2011 the County has declined to honor all ICE detainer requests. Id.

3

B. San Francisco’s Policies

4

San Francisco’s sanctuary city policies are contained in Chapters 12H and 12I of its

5 Administrative Code. Eisenberg Decl. Exs. A-B (SF Dkt. No. 28). The stated purpose of these

6 laws is “to foster respect and trust between law enforcement and residents, to protect limited local

7 resources, to encourage cooperation between residents and City officials, including especially law

8 enforcement and public health officers and employees, and to ensure community security, and due

9 process for all.” S.F. Admin Code § 12I.1.

10

As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,

11 commissions, officers, and employees from using San Francisco funds or resources to assist in

12 enforcing federal immigration law or gathering or disseminating information regarding an

13 individual’s release status, or other confidential identifying information (which as defined does not

14 include immigration status), unless such assistance is required by federal or state law. S.F. Admin

15 Code § 12H.2. Although Chapter 12H previously prohibited city employees from sharing

16 information regarding individuals’ immigration status, the San Francisco Board of Supervisors

17 removed this restriction in July, 2016, due to concerns that the provision violated Section 1373.

18

With regard to civil detainer requests, Chapter 12I prohibits San Francisco law

19 enforcement from detaining an individual, otherwise eligible for release from custody, solely on

20 the basis of a civil immigration detainer request. S.F. Admin Code § 12I.3. It also prohibits local

21 law enforcement from providing ICE with advanced notice that an individual will be released from

22 custody, unless the individual meets certain criteria. S.F. Admin Code § 12I.3. Chapter 12I.3.(e)

23 provides that a “[l]aw enforcement official shall not arrest or detain an individual, or provide any

24 individual’s personal information to a federal immigration officer, on the basis of an

25 administrative warrant, prior deportation order, or other civil immigration document based solely

26 on alleged violations of the civil provisions of immigration laws.” S.F. Admin Code § 12I.3.(e).

27 San Francisco explains that it adopted these policies due to concerns that holding people in

28 response to civil detainers would violate the Fourth Amendment and require it to dedicate scarce 8

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1 law enforcement personnel and resources to holding these individuals. Hennessy Decl. ¶11 (SF

2 Dkt. No. 24).

3 V. 4 5

THE COUNTIES’ FEDERAL FUNDING A. Santa Clara’s Federal Funding In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal

6 and federally dependent funds, making up roughly 35% of the County’s total revenues. J. Smith

7 Decl. ¶6; Marquez Decl. ¶8. This figure includes federal funds provided through entitlement

8 programs.

9

Most of the County’s federal funds are used to provide essential services to its residents.

10 Marquez Decl. ¶¶ 5-8. In support of its motion, the County includes a number of declarations

11 outlining how a loss of any substantial amount of federal funding would force it to make

12 substantial cut backs to safety-net programs and essential services and would require it to lay off

13 thousands of employees. It highlights that the County’s Valley Medical Center, the only public

14 safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which

15 covers up to 70% of its total annual costs. Lorenz Decl. ¶¶ 3, 7 (SC Dkt. No. 28). A loss of all

16 federal funds would shut down Valley Medical Center and cut off the only healthcare option for

17 thousands of poor, elderly, and vulnerable people in the County. Id. ¶ 8. It further highlights that

18 Santa Clara’s Social Services Agency, which provides various services to vulnerable residents,

19 including child welfare and protection, aid to needy families, and support for disabled children,

20 adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.

21 Menicocci Decl. ¶5 (SC Dkt. No. 30). The County’s Public Health Department receives 40% of

22 its budget and $38 million in federal funds. And the County’s Office of Emergency Services,

23 whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives

24 more than two-thirds of its budget from federal funds. Reed Decl. ¶¶ 3-20 (SC Dkt. No. 32).

25

In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement

26 federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 29-1) (showing $338 million in

27 federal grants subject to OMB auditing requirements and an additional $227 million in federal

28 grants through the Department of Housing and Urban Development). This $565 million 9

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1 represents approximately 11% of the County’s budget.

2

B. San Francisco’s Federal Funding

3

San Francisco’s yearly budget is approximately $9.6 billion; it receives approximately $1.2

4 billion of this from the federal government. Rosenfield Decl. ¶9 (SF Dkt. No. 22). San Francisco

5 uses these federal funds to provide vital services such as medical care, social services, and meals

6 to vulnerable residents, to maintain and upgrade roads and public transportation, and to make

7 needed seismic upgrades. Whitehouse Decl. ¶16 (SF Dkt. No. 23). Losing all, or a substantial

8 amount, of federal funds would have significant effects on core San Francisco programs: federal

9 funds make up 100% of Medicare for San Francisco residents, Rosenfield Decl. ¶ 29; 30% of the

10 budget for San Francisco’s Department of Emergency Management, id. ¶¶25-27; 33% of the

11 budget for San Francisco’s Human Services Agency, id. ¶¶13-18; and 40% of the budget for San

12 Francisco’s Department of Public Health, id. ¶¶19-24.

13

Approximately 20% of these federal funds, or $240 million, are from federal grants. Id.

14 ¶29. San Francisco also receives $800 million each year in federal multi-year grants, primarily for

15 public infrastructure projects. Id. ¶11.

16

San Francisco must adopt a balanced budget for the fiscal year beginning July 1, 2017.

17 Whitehouse Decl. ¶16. Under local law, the Mayor must submit a balanced budget to the Board of

18 Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to

19 create a budget reserve to account for the potential loss of significant funds. Id. ¶5-6, 8. Any

20 money placed in the budget reserve would not be available to be used for other programs or

21 services in the coming fiscal year. Id. ¶9.

22

LEGAL STANDARD

23

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

24 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

25 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

26 Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This has been interpreted as a four-part

27 conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a

28 plaintiff may also obtain an injunction if he has demonstrated “serious questions going to the 10

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1 merits” that the balance of hardships “tips sharply” in his favor, that he is likely to suffer

2 irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies

3 v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

4

DISCUSSION

5 I. 6

JUSTICIABILITY The Government argues that the Counties’ claims against the Executive Order are not

7 justiciable because the Counties cannot establish an injury-in-fact, which is necessary to establish

8 standing, and because their claims are not ripe for review. These principles of standing and

9 ripeness go to whether this court has jurisdiction to hear the Counties’ claims. I conclude that the

10 Counties have demonstrated Article III standing to challenge the Executive Order and that their

11 claims are ripe for review.

12

A. Standing

13

Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to

14 “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007); see U.S. Const.

15 art. III, §, cl. 1. “Standing is an essential and unchanging part of the case-or-controversy

16 requirement.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing a

17 plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either

18 actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a

19 favorable decision will redress that injury.” Massachusetts, 549 U.S. at 517 (citing Lujan, 504

20 U.S. at 560-61).

21

The Counties contend that they have standing to challenge the Executive Order because the

22 Order threatens to defund, or otherwise bring enforcement action against, states and local

23 jurisdictions that are “sanctuary jurisdictions.” Although the Order does not clearly define

24 “sanctuary jurisdictions,” it directs the Attorney General and Secretary to ensure that jurisdictions

25 that “willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to

26 receive Federal grants” and elsewhere equates jurisdictions that refuse to honor detainer requests

27 with the term “sanctuary jurisdictions.” It further directs the Attorney General to bring

28 “enforcement action” against jurisdictions with policies that “hinder[] the enforcement of Federal 11

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1 law.”

2

The Counties represent that they have “sanctuary policies” that are likely to subject them to

3 enforcement or defunding under the Order. They assert that enforcement under the Order would

4 result in injury-in-fact in the form of cuts to federal funds and whatever other penalty the

5 Government seeks to impose through its “enforcement action.” As a result of this threat of major

6 cuts to federal funding, the Order is also causing present injury-in-fact in the form of budget

7 uncertainty. Alternatively, attempting to comply with the Order would also cause injury, as it

8 would require them to change their local policies in ways that conflict with their local judgment on

9 how best to ensure public safety and require them to commit substantial resources to assist in

10 enforcing federal immigration laws.

11

The Government raises two primary arguments against the Counties’ claims of standing.

12 First, it asserts that the Counties cannot demonstrate injury-in-fact traceable to the Executive

13 Order because the Order does not change the law in any way, but merely directs the Attorney

14 General and Secretary to enforce existing law. Second, it argues that the Counties’ claims of

15 injury are not sufficiently “concrete” or “imminent” because the Government has not designated

16 either County as a “sanctuary jurisdiction” and has not withheld any federal funds. I will address

17 these arguments in turn.

18

1. Whether the Executive Order Changes the Law

19

The Government’s primary defense is that the Order does not change the law, but merely

20 directs the Attorney General and Secretary to enforce existing law. In its briefing, the

21 Government emphasized Section 9(a)’s provision that it will be implemented “to the extent

22 consistent with law.” It argued that to the extent the Order directs the Attorney General and

23 Secretary to newly condition federal funds on compliance with Section 1373, it could not lawfully

24 do so and so it does not. It asserted, “If the grant language does not require compliance with

25 Section 1373, the Executive Order does not purport to give the Secretary or Attorney General the

26 unilateral authority to alter those terms.” SC Oppo. at 13. By this interpretation, Section 9 simply

27 directs the Attorney General and Secretary to ensure that grants that are already conditioned on

28 compliance with Section 1373 are not remitted to jurisdictions that fail to meet that requirement. 12

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1 At the hearing, the Government went further and explicitly disclaimed the ability under the

2 Executive Order to add conditions to grants authorized by Congress or to enforce the Order

3 against any but three grant programs, SCAAP, JAG and COPS. Government counsel urged me to

4 adopt this narrow reading of the Order, arguing that well-established rules of construction require

5 courts to adopt narrow readings when broader ones would read in constitutional problems.

6

Where a construction of a statute “would raise serious constitutional problems, the Court

7 will construe the statute to avoid such problems unless such construction is plainly contrary to the

8 intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades 9 Council, 485 U.S. 568, 575 (1988).3 “[A]s between two possible interpretations of a statute, by

10 one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that

11 which will save the Act.” Blodgett v. Holden, 275 U.S. 142, 148 (1927). The primary purpose of

12 the doctrine is to “minimize disagreement between the branches by preserving congressional

13 enactments that might otherwise founder on constitutional objections.” Almendarez-Torres v.

14 U.S., 523 U.S. 224, 238 (1998).

15

“This canon is followed out of respect for Congress, which we assume legislates in the

16 light of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). This canon of

17 construction is limited; to adopt an alternate construction the statute must be “readily susceptible”

18 to that construction. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S.

19 366, 409 (1909). It is not the job of the courts “to insert missing terms into the statute or adopt an

20 interpretation precluded by [its] plain language.” Foti v. City of Menlo Park, 146 F.3d 629, 639

21 (9th Cir. 1998).

22

As a preliminary matter, a narrow construction does not limit a plaintiffs’ standing to

23 challenge a law that is subject to multiple interpretations. See Virginia v. American Booksellers

24 Ass’n, Inc., 484 U.S. 383, 392 (1988) (noting that a plaintiff’s standing may be based on its

25 interpretation of the statute even when a narrower interpretation is offered). Therefore, the

26

27

3 The Supreme Court has declined to apply this canon of construction to agency actions and it is unclear that it would apply to an Executive Order. F.C.C. v. Fox Television Stations, Inc., 556

28

U.S. 502, 516 (2009) (“We know of no precedent for applying [the canon of constitutional avoidance] to limit the scope of an authorized executive action.”).

13

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1 Government’s proposed narrow construction does not destroy justiciability.

2

With regards to the merits of the Government’s construction, the Order is not readily

3 susceptible to the Government’s narrow interpretation. Indeed, “[t]o read [the Order] as the

4 Government desires requires rewriting, not just reinterpretation.” U.S. v. Stevens, 559 U.S. 460,

5 481 (2010).

6

While the Government urges that the Order “does not purport to give the Secretary or

7 Attorney General the unilateral authority” to impose new conditions on federal grants, that is

8 exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure

9 that “sanctuary jurisdictions” are “not eligible to receive” federal grants. EO §9(a)(emphasis

10 added). Whether a jurisdiction is eligible to receive federal grants is determined by the conditions

11 on those grants and the characteristics, acts, and choices of the jurisdiction. See BLACK’S LAW

12 DICTIONARY 634 (10th ed. 2014) (defining “eligible” as “Fit and proper to be selected or to

13 receive a benefit.”). Section 9(a)’s language directing the Attorney General and Secretary to

14 ensure that jurisdictions that “willfully refuse to comply” with Section 1373 are “not eligible” for

15 federal grants therefore purports to delegate to the Attorney General and the Secretary the

16 authority to place a new condition on federal grants, compliance with Section 1373. And as

17 Government counsel agreed at the hearing, the power to place conditions on funds belongs

18 exclusively to Congress.

19

The Government attempts to read out all of Section 9(a)’s unconstitutional directives to

20 render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be

21 saved by reading the defunding provision narrowly and “consistent with law,” so that all it does is

22 direct the Attorney General and Secretary to enforce existing grant conditions. But this

23 interpretation is in conflict with the Order’s express language and is plainly not what the Order

24 says. The defunding provision is entirely inconsistent with law in its stated purpose and directives

25 because it instructs the Attorney General and the Secretary to do something that only Congress has

26 the authority to do–place new conditions on federal funds. If Section 9(a) does not direct the

27 Attorney General and Secretary to place new conditions on federal funds then it only authorizes

28 them to do something they already have the power to do, enforce existing grant requirements. 14

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1 Effectively, the Government argues that Section 9(a) is “valid” and does not raise constitutional

2 issues as long as it does nothing at all. But a construction so narrow that it renders a legal action

3 legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order’s

4 broad intent.

5

At the hearing, Government counsel argued that the Order applies only to grants issued by

6 the Department of Justice and the Department of Homeland Security because it is directed only at

7 the Attorney General and Secretary of Homeland Security. This reading is similarly implausible.

8 Nothing in Section 9(a) limits the “Federal grants” affected to those only given though the

9 Departments of Justice and Homeland Security. The Department of Justice is responsible for

10 federal law enforcement throughout the country, not just within its own Department. So when the

11 Attorney General is directed to “ensure that jurisdictions that willfully refuse to comply with 8

12 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

13 necessary for law enforcement purposes by the Attorney General or the Secretary” and to “take

14 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

15 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law,” it is

16 not reasonable to interpret the directive as applying solely to law enforcement grants that the

17 Attorney General and Secretary are specifically given authority to exempt from the Order.

18

Nor is counsel’s narrow interpretation supported by the rest of the Order. Two examples

19 suffice. Section 9(c) instructs the Director of the Office of Management and Budget “to obtain

20 and provide relevant and responsive information on all Federal grant money that currently is

21 received by any sanctuary jurisdiction.” This directive is not limited to grants issued by the

22 Departments of Justice and Homeland Security. And Section 2(c) announces a policy to “ensure

23 that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

24 except as mandated by law.” The Order’s structure and language make clear that a “sanctuary

25 jurisdiction,” which the Secretary will eventually define, should change its policies or risk loss of

26 all federal grants, and Section 9(a) provides the means to do so.

27

The purpose of adopting a plausible valid construction over one that would result in

28 constitutional issues is to save an Act that would otherwise fall on constitutional grounds. A 15

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1 construction so narrow that it reads out any legal force does not save the Act and obviates the

2 entire purpose of adopting a narrow reading. At the hearing, Government counsel explained that

3 the Order is an example of the President’s use of the bully pulpit and, even if read narrowly to

4 have no legal effect, serves the purpose of highlighting the President’s focus on immigration

5 enforcement. While the President is entitled to highlight his policy priorities, an Executive Order

6 carries the force of law. Adopting the Government’s proposed reading would transform an Order

7 that purports to create real legal obligations into a mere policy statement and would work to

8 mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self-

9 cancelling and carries no legal weight.

10

The Supreme Court has acknowledged that applying a narrow construction to an

11 unconstitutionally overbroad statute does not address the confusion and potential deterrent effect

12 caused by the language of the law itself. See, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216

13 (1975) (concluding, in a First Amendment case, that a narrow construction of an overbroad statute

14 was likely inappropriate because the “deterrent effect on legitimate expression is both real and

15 substantial.”). As discussed below, the coercive effects of the Order’s broad language counsel

16 against adopting a narrow construction that deprives it of any legal meaning.

17

The Government’s construction is not reasonable. It requires a complete rewriting of the

18 Order’s language and does not “save” any part of Section 9(a)’s legal effect. There is no doubt

19 that Section 9(a), as written, changes the law.

20

2. Pre-enforcement Standing

21

The Counties argue that they have standing to challenge the Executive Order because they

22 have demonstrated a well-founded belief that the Order will be enforced against them. In turn, the

23 Government argues that the Counties lack standing because the Government has not yet

24 designated the Counties as “sanctuary jurisdictions” or withheld funds.

25

Because the Counties have not yet suffered a loss of funds or other enforcement action

26 under the Executive Order, this case is analogous to the many cases addressing pre-enforcement

27 standing. These cases establish that a plaintiff may demonstrate pre-enforcement standing by

28 showing “an intention to engage in a course of conduct arguably affected with a constitutional 16

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1 interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.”

2 Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979); see Steffel v. Thompson, 415 U.S. 452, 459

3 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to

4 be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”);

5 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (plaintiffs can demonstrate

6 standing by alleging “a credible threat of enforcement”); American Booksellers, 484 U.S. at 392

7 (plaintiffs can establish standing by demonstrating a “well-founded fear that the law will be

8 enforced against them.”).

9

At the hearing, the Government suggested that pre-enforcement review is generally only

10 available when there are criminal penalties or First Amendment issues at stake. While pre-

11 enforcement cases often fall into these categories, pre-enforcement review is not so limited. In a

12 pre-enforcement case, just like any other case, courts are limited by “the primary conception that

13 federal judicial power is to be exercised . . . only at the instance of one who is himself immediately

14 harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, 367 U.S.

15 497, 504 (1961). The Court has repeatedly recognized that “where threatened action by

16 government is concerned, we do not require a plaintiff to expose himself to liability before

17 bringing suit to challenge the basis for the threat – for example, the constitutionality of a law

18 threatened to be enforced.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007).

19 When a threatened injury has not yet been felt, “the question becomes whether any perceived

20 threat to respondents is sufficiently real and immediate to show an existing controversy” O’Shea v.

21 Littleton, 414 U.S. 488, 496 (1974), or whether it is merely “imaginary or speculative,” Younger v.

22 Harris, 401 U.S. 37, 42 (1971).

23

The pre-enforcement line of cases outlines a framework for answering this question in the

24 context of threatened civil or criminal enforcement action. Just as Article III standing is not

25 reserved for individuals who have suffered criminal penalties or First Amendment restrictions,

26 pre-enforcement review is not reserved for such individuals. See e.g. Terrace v. Thompson, 263

27 U.S. 197, 214 (1923) (noting that a plaintiff has standing to enjoin a law when the government

28 “threatens and is about to commence proceedings, either civil or criminal, to enforce such a law 17

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1 against parties affected”); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926)

2 (holding that a landowner bringing Fourteenth Amendment claims and facing only civil penalties

3 had pre-enforcement standing).

4

Many of the pre-enforcement cases recognize that First Amendment challenges raise an

5 additional consideration for standing purposes because a statute restricting First Amendment rights

6 may cause harm without any enforcement by “chilling speech.” See American Booksellers, at 393

7 (“[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can

8 be realized even without an actual prosecution.”). While this “chilling” effect is particularly

9 important in the First Amendment context, analogous concerns have been recognized in other

10 situations. For example, that a threat of legal action may coerce individuals to abandon their legal

11 rights is well recognized outside of First Amendment restrictions and was one of the driving

12 factors behind the creation of the Declaratory Judgment Act. See MedImmune, 549 U.S. at 129

13 (“The dilemma posed by that coercion—putting the challenger to the choice between abandoning

14 his rights or risking prosecution—is a dilemma that it was the very purpose of the Declaratory

15 Judgment Act to ameliorate.”). And courts have recognized that, outside the First Amendment

16 context, a law’s threat of enforcement may, on its own, cause present injury. See Village of

17 Euclid, 272 U.S. at 386. In Village of Euclid, the Court considered whether a landowner had pre-

18 enforcement standing to challenge a local zoning ordinance that it alleged had drastically reduced

19 the market value of a particular piece of property by limiting its use and threatening to impose

20 penalties for zoning violations. Id. at 384. Although the landowner had not faced any

21 enforcement under the ordinance, the Court concluded the claims were justiciable because “injury

22 is inflicted by the mere existence and threatened enforcement of the ordinance” as “prospective

23 buyers . . . are deterred from buying any part of this land.” Id. 384-385.

24

In sum, the pre-enforcement cases reveal that an individual facing enforcement action may

25 establish standing by demonstrating a well-founded fear of enforcement and a threatened injury

26 that is “sufficiently real and imminent.” O’Shea, 414 U.S. at 496. One may also establish

27 standing by demonstrating that a well-founded fear of enforcement action is itself causing present

28 injury. See American Booksellers, at 393; Village of Euclid, 272 U.S. at 385. 18

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1

As I discuss below, review of the Counties’ allegations demonstrates that they have a well-

2 founded fear of enforcement under the Executive Order. They have further demonstrated that

3 enforcement under the Order would deprive them of federal grants that they use to provide critical

4 services to their residents and that the “mere existence and threatened enforcement” of the Order is

5 causing them present injury in the form of budget uncertainty. They have demonstrated Article III

6 standing to challenge the Order.

7

a. The Counties’ policies are proscribed by the language of the

Executive Order 8

Where it is not fully clear what conduct is proscribed by a statute, a well-founded fear of

9

enforcement may be based in part on a plaintiff’s reasonable interpretation of what conduct is

10

proscribed. See American Booksellers, 484 U.S. at 392. This is true even if a narrower reading of

11

the statute may be available. Id. at 397.

12

In American Booksellers, the Supreme Court concluded that a group of booksellers had

13

standing to challenge a Virginia law that made it unlawful for any person to “knowingly display

14

for commercial purpose” visual or written material depicting sexual conduct “which is harmful to

15

juveniles.” Id. at 386 (citing Va. Code § 18.2-391(a) (Supp. 1987)). The booksellers challenged

16

the statute on First Amendment grounds and alleged that they had standing because they had

17

identified 16 books that they intended to display and that they believed would be covered by the

18

statute. Id. Even though the statute had not been made effective and the State had not identified

19

specific materials that would be implicated by the statute, the Court concluded that this was

20

sufficient to establish Article III standing because “the law is aimed directly at plaintiffs, who, if

21

their interpretation of the statute is correct, will have to take significant and costly compliance

22

measures or risk criminal prosecution.” Id. at 392. Further, while the government put forward a

23

narrow construction of the law that would have made the burden to booksellers and the public

24

“significantly less than that feared and asserted by plaintiffs,” the Court did not consider this

25

construction in assessing the plaintiffs’ standing. Id. at 397.

26

The Counties’ policies are likely to subject them to enforcement given their reasonable

27

interpretation of what conduct and policies the Order purports to proscribe. Section 9(a) of the

28

19

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1 Executive Order directs the Attorney General and the Secretary to “ensure” that “sanctuary

2 jurisdictions” are “not eligible to receive Federal grants.” EO §9(a). The Counties acknowledge

3 that the Executive Order does not clearly define “sanctuary jurisdictions” but note that the Order’s

4 language indicates that a “sanctuary jurisdiction” is, at a minimum, any jurisdiction that “willfully

5 refuse[s] to comply with 8 U.S.C. 1373.” The Government has not clarified what it means to

6 “willfully refuse to comply” with Section 1373, and indeed argues that the Counties lack standing

7 because the Attorney General and Secretary of Homeland Security have not yet figured that out.

8 SC Oppo. at 11 (“[T]he Attorney General and the Secretary of Homeland Security must determine

9 exactly what constitutes ‘willful refusal to comply with 8 U.S.C. § 1373’”). Despite this, on

10 March 27, 2017, Attorney General Sessions “urg[ed] states and local jurisdictions to comply with

11 these federal laws, including 8 U.S.C. Section 1373” and confirmed that “failure to remedy

12 violations could result in withholding grants, termination of grants, and disbarment or ineligibility 13 for future grants.” See RJN-2, Ex. D (“Sessions Press Conference”) (SF Dkt. No. 61-4).4

14

The Attorney General also stated that this policy was “entirely consistent with the

15 Department of Justice’s Office of Justice Program’s guidance that was issued just last summer

16 under the previous government.” Id. In the process of developing that guidance, the Inspector

17 General of the Department of Justice, Michael Horowitz, prepared a memorandum entitled

18 “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant 19 Recipients.” See RJN-1, Ex. A (Dkt. No. 29-1).5 The memorandum studies the policies of several

20 jurisdictions and discusses whether they might violate Section 1373. It supports a broad reading

21 of Section 1373 and specifically notes that San Francisco’s policy prohibiting City employees

22 from using “City funds or resources to assist in the enforcement of federal immigration law or to

23

24 4 I take judicial notice of Attorney General Sessions’s press conference statements which “can be

25

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

26 5 I take judicial notice of the Horowitz memorandum as a government memorandum that is not

27

subject to reasonable dispute. Mack v. S. Bay Beer Distribs., Inc., 789 F.2d 1279, 1282 (9th Cir. 1986) (courts may judicially notice records and reports prepared by administrative bodies);

28

Daniels-Hall, 629 F.3d at 998-999 (courts may judicially notice information contained on official government websites).

20

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1 gather or disseminate information regarding the immigration status of individuals . . . unless such

2 assistance is required by federal or State statute” could run afoul of Section 1373 unless San

3 Francisco employees are aware that they are permitted to share immigration status information

4 with ICE. Id. The memo further suggests that policies prohibiting civil detainer requests, even if

5 they do not explicitly restrict sharing of immigration status information, may nevertheless affect

6 ICE’s interactions with local officials regarding immigration status requests and therefore raise

7 Section 1373 concerns. Id.

8

In addition to the potential that, under the Order, compliance with Section 1373 requires

9 compliance with detainer requests, the Order may also directly require states and local

10 governments to honor ICE detainer requests to avoid being designated “sanctuary jurisdictions.”

11 While the defunding provision in Section 9(a) seems to define “sanctuary jurisdictions” as those

12 that run afoul of Section 1373, Section 9(b) equates “sanctuary jurisdictions” with “any

13 jurisdiction that ignored or otherwise failed to honor any detainers with respect to [aliens that have

14 committed criminal actions].” This language raises the reasonable concern that a state or local

15 government may be designated a sanctuary jurisdiction, and subject to defunding, if it fails to

16 honor ICE detainer requests. This interpretation is supported by Section 9(a)’s broad grant of

17 discretion to the Secretary to designate jurisdictions as “sanctuary jurisdictions.” While the Order

18 states that the Secretary’s designation authority must be exercised “consistent with law,” with the

19 exception of the Order there are no laws regarding “sanctuary jurisdiction” designations: Section 9

20 gives the Secretary unlimited discretion.

21

This reading is also supported by Section 9(a)’s directive to the Attorney General to take

22 “appropriate enforcement action” against any jurisdiction that has a policy or practice that

23 “hinders the enforcement of federal law.” While the Order does not outline what policies

24 “hinder[] the enforcement of Federal law,” Attorney General Sessions recently suggested that a

25 local policy that prohibits compliance with detainer requests would constitute a “policy, or

26 practice that prevents or hinders the enforcement of Federal law.” See Sessions Press Conference

27 at 2 (“Unfortunately, some states and cities have adopted policies designed to frustrate this

28 enforcement of immigration laws. This includes refusing to detain known felons on the federal 21

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1 detainer request, or otherwise failing to comply with these laws.”). Given Section 9(b)’s language

2 equating “sanctuary jurisdictions” with jurisdictions that fail to honor detainer requests, the

3 Secretary’s unlimited discretion in designating jurisdictions as “sanctuary jurisdictions,” and the

4 Order’s instruction that the Attorney General shall take “enforcement action” against jurisdictions

5 that hinder the enforcement of federal law, which the Attorney General has indicated includes, at a

6 minimum, failure to honor detainer requests, the Order appears to proscribe states and local

7 jurisdictions from adopting policies that refuse to honor detainer requests.

8

Santa Clara’s policy, prohibiting local officials from using County funds to transmit

9 information collected in the course of providing critical services or benefits, could be considered a

10 restriction on the intergovernmental exchange of information regarding immigration status in

11 violation of Section 1373. Similar to Santa Clara, San Francisco prohibits the use of City funds or

12 resources “to assist in the enforcement of Federal immigration law.” S.F. Admin. Code § 12H.2.

13 Although these policies do not directly prohibit communications with ICE, given the breadth of

14 the Order and the statements of the Attorney General, the Counties have a well-founded fear that

15 the Government may argue that they may sufficiently interfere with those communications in a

16 way that violates Section 1373. Further, the Counties do not honor civil detainer requests. Under

17 a broad reading, these policies may be considered an improper restriction on the intergovernmental

18 exchange of information in violation of Section 1373, falling within Section 9(b)’s language that

19 jurisdictions that fail to honor detainer requests are “sanctuary jurisdictions.”

20

In short, the Counties are likely to be designated “sanctuary jurisdictions” under their

21 reasonable interpretation of the Executive Order.

22

b. The Government has indicated an intent to enforce the Order

generally and against the Counties more specifically 23

In assessing whether enforcement action is likely, courts look to the past conduct of the

24

government, as well as the government’s statements and representations, to determine whether

25

enforcement is likely or simply “chimerical.” See Steffel, 415 U.S. at 459 (petitioner that had

26

twice been warned to stop handbilling, and whose companion had been arrested, had well-founded

27

fear of enforcement); Poe, 367 U.S. at 508 (1961) (“the fear of enforcement of provisions that

28

22

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1 have during so many years gone uniformly and without exception unenforced” was “chimerical”).

2 A plaintiff does not need to have been specifically threatened with enforcement action to show

3 that enforcement action is likely. See Susan B. Anthony List, 134 S. Ct. at 2345 (plaintiffs

4 demonstrated credible threat of enforcement where the law had previously been enforced against

5 them); American Booksellers, 484 U.S. at 393 (plaintiffs had credible threat of enforcement even

6 though newly enacted law had not become effective and no enforcement action had been brought

7 or threatened under it). However, “the threat of enforcement must at least be ‘credible,’ not

8 simply ‘imaginary or speculative.’ ” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,

9 1140 (9th Cir. 2000) (en banc) (citing Babbitt, 442 U.S. at 298).

10

Although the Government now takes the position that the Order carries no legal force, in

11 its public statements and through its actions it has repeatedly indicated its intent to enforce the

12 Order. The Executive Order was passed on January 27, 2017. Although the defunding provision

13 has not yet been enforced against any jurisdiction, governmental leaders have made numerous

14 statements reaffirming the Government’s intent to enforce the Order and to use the threat of

15 withholding federal funds as a tool to coerce states and local jurisdictions to change their policies.

16 On February 5, 2017, after signing the Executive Order, President Trump confirmed that he was

17 willing and able to use “defunding” as a “weapon” so that sanctuary cities would change their

18 policies. See Harris Decl. Ex. B (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with President

19 Donald J. Trump) at 4 (SC Dkt. No. 36-2) (“I don’t want to defund anybody. I want to give them

20 the money they need to properly operate as a city or a state. If they’re going to have sanctuary 21 cities, we may have to do that. Certainly that would be a weapon.”).6

22

Sean Spicer, the White House press secretary, has confirmed that the Government intends

23 to enforce the order, stating that the President intended to ensure that “counties and other

24 institutions that remain sanctuary cities don’t get federal government funding in compliance with

25

26

27

6 I take judicial notice of President Trump’s interview statements as the veracity of these statements “can be accurately and readily determined from sources whose accuracy cannot

28 reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

23

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1 the executive order.” Harris Decl. Ex. C at 4-5 (SC Dkt. No. 36-3).7 In the same briefing, Spicer

2 cited favorably the actions of Miami-Dade County Mayor Carlos Giménez who, one day after the

3 Executive Order, instructed his Interim Director of Corrections to “honor all immigration detainer 4 requests” “[i]n light of the Executive Order.” See RJN-1, Ex. C (SF Dkt. No. 29-3).8 Lauding

5 Miami-Dade’s actions, Spicer noted that Miami-Dade “understand[s] the importance of this order”

6 and encouraged other jurisdictions to follow its lead. Harris Decl. Ex. C at 4-5.

7

Attorney General Sessions recently reaffirmed the Government’s intent to enforce the

8 defunding provisions, stating that if jurisdictions do not comply with Section 1373, such violations

9 would result in “withholding grants, termination of grants, and disbarment or ineligibility for

10 future grants,” and that the Government would seek to “claw back any funds awarded to a 11 jurisdiction that willfully violates 1373.” Sessions Press Conference at 2.9 When asked at a

12 subsequent press briefing about this claw back process, Spicer confirmed that the Government’s

13 “priority is clear, is to get cities into – into compliance and to make sure we understand there’s not

14 just a financial impact of this, but also a very clear security aspect of this.” RJN-3, Ex. C at 15 15 (SF Dkt. No. 74-3).10

16

The statements of the President, his press secretary and the Attorney General belie the

17

18 7 I take judicial notice of Spicer’s February 8, 2017 press briefing as courts may judicially notice 19 information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

20

8 I take judicial notice of Mayor Giménez’s memorandum as a government memorandum and record. See Mack, 789 F.2d at 1282.

21 9 In addition to these statements, the Government began to implement Section 9(b) of the

22

Executive Order, which is designed to “better inform the public regarding the public safety threats associated with sanctuary jurisdictions” and requires ICE to publish a weekly “Declined Detainer

23

Outcome Report” containing a public list of all “criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

24

See RJN-2, Ex. H. (SF Dkt. No. 61-8). Due to concerns that the weekly reports contained inaccurate information, the Declined Detainer Outcome Report has been “temporarily suspended”

25

but “ICE remains committed to publishing the most accurate information available regarding declined detainers across the country.” Declined Detainer Outcome Report, ICE,

26

https://www.ice.gov/declined-detainer-outcome-report (last visited April 12, 2017). I take judicial notice of the ICE’s Declined Detainer Outcome Reports as courts may judicially notice

27 information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

28

10 I take judicial notice of Spicer’s March 31, 2017 press briefing as courts may judicially notice information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

24

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1 Government’s argument in the briefing that the Order does not change the law. They have

2 repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive

3 Order. The Counties’ concerns that the Government will enforce the defunding provision are well

4 supported by the Government’s public statements and actions, all of which are consistent with

5 enforcing the Order.

6

Finally, in addition to demonstrating that the Government is likely to enforce the Order,

7 the Counties have demonstrated that the Government is particularly likely to target them and the

8 funds on which they rely. In a February 5, 2017 interview, President Trump specifically

9 threatened to defund California, stating: “I’m very much opposed to sanctuary cities. They breed

10 crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of

11 money to California . . . California in many ways is out of control.” See Harris Decl. Ex. B. The

12 Counties have established that they both receive large percentages of their federal funding through

13 the State of California, and that they would suffer injury if California was “defunded.” In a recent

14 joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court, Attorney General

15 Sessions and Secretary Kelly again called out the State of California, as well as its cities and

16 counties, for their sanctuary policies: “Some jurisdictions, including the State of California and

17 many of its largest counties and cities, have enacted statutes and ordinances designed to

18 specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication

19 with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make 20 arrests.” RJN-3, Ex. A (SF Dkt. No. 74-1).11 ICE has identified California, Santa Clara County,

21 and San Francisco as jurisdictions with policies that “Restrict Cooperation with ICE” and has

22 identified Santa Clara County Main Jail and San Francisco County Jail as two of eleven detention

23 centers with the “highest volume of detainers issued” that “do not comply with detainers on a

24 routine basis.” RJN-3, Ex. B (SF Dkt. No. 74-2).

25

The President and the Attorney General have also repeatedly held up San Francisco

26

27 11 I take judicial notice of Attorney General Sessions’s and Secretary Kelly’s letter as an official 28 government document. See Mack, 789 F.2d at 1282.
25

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1 specifically as an example of how sanctuary policies threaten public safety. In his statements to

2 the press on March 27, 2017, Attorney General Sessions referenced the tragic death of Kate

3 Steinle and noted that her killer “admitted the only reason he came to San Francisco was because

4 it was a sanctuary city.” Sessions Press Conference at 1. In an op-ed recently published in the

5 San Francisco Chronicle, the Attorney General wrote that “Kathryn Steinle might be alive today if

6 she had not lived in a ‘sanctuary city’ ” and implored “San Francisco and other cities to re7 evaluate these policies.” RJN-3, Ex. D (SF Dkt. No. 74-4).12 These statements indicate not only

8 the belief that San Francisco is a “sanctuary jurisdiction” but that its policies are particularly

9 dangerous and in need of change. They also reveal a choice by the Government to hold up San

10 Francisco as an exemplar of a sanctuary jurisdiction.

11

The Government argues that despite these public statements, San Francisco and Santa

12 Clara cannot demonstrate a credible threat of enforcement because the Government has not

13 actually threatened to enforce the Executive Order against them. It points to Thomas v. Anchorage

14 Equal Rights Commission, in which the Ninth Circuit, sitting en banc, concluded that plaintiffs

15 lacked standing to challenge an Alaska law prohibiting landlords from discriminating against

16 tenants on the basis of their marital status. Thomas, 220 F.3d at 1137. In finding the case was

17 non-justiciable, the court highlighted that “[n]o action has ever been brought against the landlords

18 to enforce the marital status provision.” Id. at 1140. However, this was not the only fact

19 informing the court’s analysis: it also noted that plaintiffs could not point to concrete facts

20 showing that they had ever violated the law or were planning to violate it, it stressed that the

21 enforcement agency tasked with enforcing the Alaska law had never heard of plaintiffs before the

22 case was filed, and it emphasized that in 25-years on the books the law had been minimally

23 enforced (resulting in only two civil enforcement actions and no criminal prosecutions). Id. None

24 of these facts are present here.

25

The Government’s specific criticisms of San Francisco, Santa Clara, and California

26

27 12 I take judicial notice of Attorney General Sessions’s statements in his op-ed as the veracity of

28

these statements “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

26

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1 support a well-founded fear that San Francisco and Santa Clara will face enforcement directly

2 under the Executive Order, or could be subject to defunding indirectly through enforcement 3 against California.13 San Francisco and Santa Clara have shown that their current practices and

4 policies are targeted by the Order. They have demonstrated that, in the less-than-three months

5 since the Order was signed, the Government has repeatedly indicated its intent to enforce it. And

6 they have established that the Government has specifically highlighted Santa Clara and San

7 Francisco as jurisdictions with sanctuary policies. On these facts, Santa Clara and San Francisco

8 have demonstrated that the “threat of enforcement [is] credible, not simply imaginary or

9 speculative.” Id. (internal quotation marks omitted).

10

c. The Counties’ claims implicate a constitutional interest

11

The Counties’ claims implicate a constitutional interest, the rights of states and local

12 governments to determine their own local policies and enforcement priorities pursuant to the

13 Tenth Amendment. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592,

14 601 (1982) (highlighting that states have a sovereign interest in “the exercise of sovereign power

15 over individuals and entities within the relevant jurisdiction—this involves the power to create and

16 enforce a legal code, both civil and criminal”); see also New York v. United States, 505 U.S. 144,

17 157-158 (1992) (“[T]he Tenth Amendment confirms that the power of the Federal Government is

18 subject to limits that may, in a given instance, reserve power to the States.”).

19

The Counties explain that their sanctuary policies “reflect local determinations about the

20 best way to promote public health and safety.” SF Mot. at 19 (SF Dkt. No. 21). In contrast to the

21 Order’s assertion that sanctuary jurisdictions are a “public safety threat[],” the Counties contend

22 that, in their judgment and experience, sanctuary policies make the community safer by fostering

23 trust between residents and local law enforcement. Among other things, this community trust

24 encourages undocumented residents to cooperate with police and report crimes, see Individual

25 Sheriffs and Police Chiefs’ Amicus Brief at 3-10 (SF Dkt. No. 59-1); Southern Poverty Law

26

27 13 Amicus briefs on behalf of numerous California cities and counties, public school districts and

28

the State Superintendent of Instruction echo the reasons given by the Counties to demonstrate standing here.

27

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1 Center Amicus Brief at 5 (SF Dkt. No. 38-2) and to obtain preventative medical care and

2 immunizations, which has major implications for public health and works to reduce emergency

3 medical care costs, see Nonprofit Associations’ Amicus Brief at 11(SF Dkt. No. 68-1); SEIU

4 Amicus Brief at 5-6 (SF Dkt. No. 33-1). It also improves schools’ ability to provide quality

5 education to all children. See State Superintendent of Public Instruction’s Amicus Brief at 1-2 (SF 6 Dkt. No. 64-1); Public Schools’ Amicus Brief at 7 (SF Dkt. No. 58-1).14

7

The Counties have demonstrated that their sanctuary policies reflect their local judgment of

8 what policies and practices are most effective for maintaining public safety and community health.

9 Because they argue that the Executive Order seeks to undermine this judgment by attempting to

10 compel them to change their policies and enforce the Federal government’s immigration laws in

11 violation of the Tenth Amendment, their claims implicate a constitutional interest. See Virginia ex

12 rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (“when a federal law interferes with

13 a state’s exercise of its sovereign ‘power to create and enforce a legal code’ [] it inflict[s] on the

14 state the requisite injury-in-fact.”); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228,

15 233 (6th Cir. 1985) (Ohio had standing to litigate the constitutionality of its own law where

16 “effective enforcement of the Ohio statute” was rendered “uncertain by the formal position of the

17 [U.S. Department of Transportation] that the Ohio statute is preempted” as “threatened injury to a

18 State’s enforcement of its safety laws” constitutes an injury-in-fact).

19

20

14 The Counties have received support from dozens of Amici, who collectively filed 16 briefs in support of each motion for preliminary injunction. See, SEIU Amicus Brief (SF Dkt. No. 33-

21

1)(SF Dkt. No. 59-1); Professors of Constitutional Law Amicus Brief (SF Dkt. No. 36-1) (SC Dkt. No. 68-1); Southern Poverty Law Center, et al. Amicus Brief (SF Dkt. No. 38-1)(SC Dkt. No. 67-

22

1); Technology Companies Amicus Brief (SF Dkt. No. 39-1)(SC Dkt. No. 73-1); California Cities and Counties Amicus Brief (SF Dkt. No. 40)(SC Dkt. No. 74-1); Tahirih Justice Center et al.

23

Amicus Brief (SF Dkt. No. 41-1)(SC Dkt. No. 76-1); International Municipal Lawyers Amicus Brief (SF Dkt. No. 47-1); Public Schools Amicus Brief (SF Dkt. No. 58-1)(SC Dkt. No. 77-1);

24

Individual Sheriffs and Police Chiefs Amicus Brief (SF Dkt. No. 59-1)(SC Dkt. No. 65-1); 34 Cities and Counties Amicus Brief (SF Dkt. No. 62-1)(SC Dkt. No. 61-1); Constitutional Law

25

Scholars Amicus Brief (SF Dkt. No. 63-1)(SC Dkt. No. 69-1); California Superintendent of Public Instruction Amicus Brief (SF Dkt. No. 64-1)(SC Dkt. No. 75); State of California Amicus Brief

26

(SF Dkt. No. 66-1)(SC Dkt. No. 71-1); Anti-Defamation League Amicus Brief (SF Dkt. No. 671)(SC Dkt. No. 72-1); Bay Area Non-Profits (SF Dkt. No. 68-1)(SC Dkt. No. 78-1); SIREN

27

Amicus Brief (SC Dkt. No. 64-1); see also NAACP Joinder re Southern Poverty Law Amicus Brief (SF Dkt. No. 69)(SC Dkt. No. 86); Young Women’s Christian Association Joinder re

28

Motion for Preliminary Injunction (SC Dkt. No. 43-3). I GRANT all of Amici’s administrative motions for leave to file Amicus Briefs.

28

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d. The Counties are threatened with the loss of federal grants and

1

face a present injury in the form of budgetary uncertainty

2

The Counties assert that the Order threatens to penalize them for failing to comply with

3 Section 1373 and for failing to honor detainer requests by withholding all federal funds, or at least

4 all federal grants. Section 9(a) does not threaten all federal funding, but it does include all federal

5 grants, which still make up a significant part of the Counties’ budgets. This threatened injury

6 meets Article III’s standing requirements. A “loss of funds promised under federal law [] satisfies

7 Article III’s standing requirement.” Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d

8 956, 965 (9th Cir. 2015).

9

The Counties also explain that the need to mitigate a potential sudden loss of federal funds

10 has thrown their budgeting processes into uproar: they cannot make informed decisions about

11 whether to keep spending federal funds on needed services for which they may not be reimbursed;

12 they are forced to make contingency plans to deal with a potential loss of funds, including placing

13 funds in a budget reserve in lieu of spending that money on needed programs; and the obligation

14 to mitigate potential harm to their residents and drastic cuts to services may ultimately compel

15 them to change their local policies to comply with what they believe to be an unconstitutional

16 Order. The potential loss of all federal grants creates a contingent liability large enough to have

17 real and concrete impacts on the Counties’ ability to budget and plan for the future. As discussed

18 in more detail below, the Counties have demonstrated that they are suffering a present “injury []

19 inflicted by the mere existence and threatened enforcement of the [Order].” Village of Euclid, 272

20 U.S. at 385. In addition to the threatened loss of funds, this may also establish Article III standing.

21

A sudden loss of grant funding would have another effect. The Counties receive large

22 portions of their federal grants through reimbursement structures – the Counties first spend their

23 own money on particular services and then receive reimbursements from the federal government

24 based on the actual services provided. Marquez Decl. ¶ 15. Because these funds are spent on an

25 ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal

26 reimbursements for services already provided. A sudden cut to funding, including a cut to these

27 reimbursements, could place them immediately in significant debt. A sudden and unanticipated

28 cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make 29

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1 even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on

2 budget. Whitehouse Decl. ¶ 9.

3

San Francisco explains that a mid-year loss of only $120 million in federal funding would:

4 require the City to make significant cuts to critical services and would result in reductions in the

5 numbers of first responders, such as police officers, firefighters, and paramedics; require severe

6 cuts to the City’s MUNI transportation system; threaten the Mayor’s program to end chronic

7 veterans’ homelessness by 2018; and likely require cuts to social services, such as senior meals,

8 safety net services for low-income children, and domestic violence prevention services.

9 Whitehouse Decl. ¶17. Because federal grants support key government services, San Francisco

10 asserts that, without clarity about the funds the Order could withhold or claw back, it will need to

11 allocate millions of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of

12 significant funds during the 2017 fiscal year. Whitehouse Decl. ¶8, 10, 15. Any funds placed in a

13 reserve fund will not be available to fund other City programs and services for the 2017 fiscal

14 year, which would result in a dollar-for-dollar reduction in services the City is able to provide its

15 residents. Id. 13-14.

16

Santa Clara asserts that the current budgetary uncertainty puts it in an “untenable position.”

17 Marquez Decl. ¶4. It explains that Santa Clara’s budget for the current fiscal year is already in

18 place and was developed based on careful weighing of various factors, including anticipated

19 revenues, specific service needs, salary and benefits for the County’s 19,000 employees, and the

20 County’s fiscal priorities. Id. ¶12. Because Santa Clara operates federally funded programs on a

21 daily basis, and incurs costs in anticipation that it will be reimbursed, its ability to provide these

22 services depends on the County having some confidence that it will continue to receive the federal

23 reimbursements and funds on which it depends. With the Order’s unclear and broad language

24 threatening a significant cut to funding, the County does not know “whether to (1) continue

25 incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal

26 government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or

27 (3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law

28 enforcement and other resources to assist the federal government in its immigration enforcement 30

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1 efforts.” Id. at 11.

2

The Government argues that governmental budgeting always suffers from some

3 uncertainty due to fluctuations in cost and tax revenues so any uncertainty caused by the Executive

4 Order does not make “an otherwise certain endeavor [] less certain.” While local budgeting

5 always suffers from some uncertainty, as addressed immediately above, it is the magnitude of the

6 present uncertainty and the fact that the Executive Order places at risk funds on which the

7 Counties could previously rely that is causing them harm. The Government also argues that the

8 Counties’ concerns would not be addressed by enjoining the Executive Order because “the Order

9 does not alter or expand existing law governing the Federal Government’s discretion to revoke or

10 deny a grant where the grantee violates legal requirements.” As discussed supra in Section I.A.1,

11 I reject this unpersuasive interpretation of the Order.

12

Finally, the Government asserts that budgetary uncertainty is too abstract to meet Article

13 III’s standing requirements and cites Los Angeles Memorial Coliseum Commission v. National

14 Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The facts of that case are not analogous to

15 this one. There, the Coliseum Commission alleged that there was a reasonable likelihood that the

16 Raiders were “seriously interested” in moving to Los Angeles but that they were unlikely to get

17 the necessary votes from the NFL to approve a transfer under the existing rules. The Ninth Circuit

18 concluded that the Commission’s speculative allegations were not sufficient to establish standing

19 to challenge the transfer approval rules. Id. While the Commission alleged it was likely to suffer

20 losses in revenues as a result of the transfer rules, it made no argument that the NFL’s rules caused

21 the type of significant budget uncertainty alleged here.

22

The Counties cite Clinton v. City of New York, 524 U.S. 417, 438 (1998), which is on

23 point. There, the Court considered whether the City of New York was injured when President

24 Clinton cancelled a section of the Balanced Budget Act of 1997 that waived the federal

25 government’s right to recover certain past taxes from New York. Id. at 422. This cancellation

26 meant that the state was again potentially liable for remitting close to $2.6 billion to the

27 Department of Health and Human Services (“HHS”), and would have to wait for a determination

28 from the HHS as to whether it would grant the state’s requests to waive those taxes. Id. The 31

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1 Court rejected the government’s argument that the City’s injuries were too speculative. It

2 concluded that although there was still a potential that New York’s taxes would be waived, the

3 President’s cancellation had deprived New York of the benefits of the law, which were akin to the

4 certainty of a favorable final judgment. Id. at 430-31. It reasoned, “the revival of a substantial

5 contingent liability immediately and directly affects the borrowing power, financial strength, and

6 fiscal planning of the potential obligor” and constitutes an injury-in-fact. Id. at 430-31.

7

While President Clinton’s cancellation in City of New York revived a contingent liability,

8 President Trump’s Executive Order creates a contingent liability, potentially placing hundreds of

9 millions of dollars of the Counties’ federal grants at risk. The Counties have explained the

10 concrete impact this new liability has had in disrupting their ability to budget, make decisions

11 regarding what services to provide, and plan for the future. The potential loss of funds also

12 impacts the Counties potential borrowing power and financial strength – San Francisco notes that

13 it has already received inquiries from credit rating agencies about the Executive Order and its

14 impact on San Francisco’s finances. Rosenfield Decl. ¶31. This budget uncertainty is not

15 abstract. It has caused the Counties real and tangible harms. They have adequately demonstrated

16 that budgetary uncertainty of the type threatened by the Executive Order can constitute an injury-

17 in-fact sufficient for Article III standing.

18

e. The Counties meet the requirements for pre-enforcement

standing 19

In sum, the Counties have established a well-founded fear of enforcement under the

20

Executive Order. They have demonstrated that, under their reasonable interpretation of the Order,

21

their local policies are proscribed by Section 9’s language. They have demonstrated that the

22

Government intends to enforce the Order against them specifically. And they have demonstrated

23

that their claims against the Order implicate a constitutional interest – their Tenth Amendment

24

rights to self-governance. The Counties have shown “an intention to engage in a course of

25

conduct arguably affected with a constitutional interest, but proscribed by a statute, and there

26

exists a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298. Further, the

27

Counties have demonstrated that the Order threatens to withhold federal grant money and that the

28

32

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1 threat of the Order is presently causing the Counties injury in the form of significant budget

2 uncertainty. The Counties’ well-founded fear of enforcement of Section 9(a) is sufficient to

3 demonstrate Article III standing.

4

B. Ripeness

5

The Government also argues that the Counties’ claims are not justiciable because they are

6 not “prudentially ripe.” In assessing prudential ripeness, a court considers “both the fitness of the

7 issues for judicial decision and the hardship to the parties of withholding court consideration.”

8 Abbott Labs. v. Gardner, 387 U.S. 136, 149 (9th Cir. 1989). The Supreme Court has called into

9 question “the continuing vitality of the prudential ripeness doctrine” and highlighted that

10 prudential ripeness is distinct from constitutional ripeness. Susan B. Anthony List, 134 S. Ct. at

11 2347 (holding that a claim was justiciable, even though the Court had not yet assessed its

12 prudential ripeness, because “we have already concluded that petitioners have alleged a sufficient

13 Article III injury”). Regardless, the Counties’ claims meet the “fitness” and “hardship” factors of

14 prudential ripeness.

15

“A claim is fit for decision if the issues raised are primarily legal, do not require further

16 factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible,

17 874 F.2d 624, 627 (9th Cir. 1989). The Government asserts that the Counties’ claims are not yet

18 fit for review because “[i]mplementation of Section 9 ‘rests upon [several] contingent future

19 events’– including clarification of some of its terms – and those terms may ultimately be defined

20 such as to exclude the County or its grants or otherwise to greatly diminish the Order’s

21 ‘anticipated’ impact.” SC Oppo. at 17 (citing Texas v. United States, 523 U.S. 296, 300 (1998)).

22

In Texas v. United States, Texas sought a declaration that a state provision allowing the

23 State Commissioner of Education to appoint a special master to impose sanctions against school

24 districts falling below the state’s accreditation requirements did not violate Section 5 of the Voting

25 Rights Act. 523 U.S. at 299. The Court concluded that this claim was not ripe for review because

26 the relevant statute would only come into play if a school district fell below the state’s standard, if

27 the Commissioner had unsuccessfully attempted to impose a number of other less intrusive

28 measures first, and if the Commissioner then decided a special master was necessary. Id. at 300. 33

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1 Given the various uncertain future events, and that the state could not identify any school district

2 to which the Commissioner was likely to appoint a special master, the Court concluded that the

3 claim was not yet fit for review. Id.

4

The Government argues that, because it must still determine what the terms of the Order

5 mean and how it will enforce it, the Counties’ claims are not fit for review, just like the state’s

6 claim in Texas. This argument is not convincing. The “contingent future events” the Government

7 identifies are always at issue in a pre-enforcement case; before actual enforcement occurs the

8 enforcing agency must determine what the statute means and to whom it applies. Under the

9 Government’s line of reasoning, virtually all pre-enforcement cases would be non-justiciable on

10 prudential ripeness grounds. But the possibility that the Government “may” choose to interpret

11 the Order’s broad language narrowly or “may” choose not to enforce it against the Counties does

12 not justify deferring review. This is especially true here because, as the Counties highlight, the

13 uncertainty concerning how the Government will enforce the Order is currently causing them

14 injury. Given the statements of the President and Attorney General, the Counties have every

15 reason to be concerned about budgeting decisions, are struggling to determine whether to continue

16 to provide, or cut services, and are expending time and resources planning for the contingency of

17 losing federal funds. The Counties challenge the Executive Order as written; a decision to enforce

18 it sparingly cannot impact whether it is unconstitutional on its face. The Counties’ claims do not

19 require further factual development, are legal in nature, and are brought against a final Executive

20 Order. They are fit for review.

21

“To meet the hardship requirement, a litigant must show that withholding review would

22 result in direct and immediate hardship and would entail more than possible financial loss.”

23 Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989) (internal quotation marks

24 omitted). The Government argues that the “uncertainties surrounding the implementation of

25 Section 9 and the need for ‘factual development’ greatly outweigh any ‘hardship’ to the Count[ies]

26 from awaiting those developments.” SC Oppo. at 17-18. But the “uncertainties” created by the

27 broad, vague language of the Order, its unconstitutional directives, and the comments of the

28 President and Attorney General about what type of conduct and which jurisdictions it targets are 34

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1 causing the Counties present harm. Without clarity the Counties do not know whether they should

2 start slashing essential programs or continue to spend millions of dollars and risk a financial crisis

3 in the near future. They are forced to choose “between taking immediate action to [their]

4 detriment and risking substantial future penalties for non-compliance.” Chamber of Commerce of

5 U.S. v. Reich, 57 F.3d 1099, 1100-01 (D.C. Cir. 1995). Waiting for the Government to decide

6 how it wants to apply the Order would only cause more hardship and would not resolve the legal

7 question at issue: whether Section 9(a) as written is unconstitutional. The Counties’ claims are

8 prudentially ripe.

9

The Counties have established Article III standing and their claims are justiciable. They

10 have also demonstrated that their claims are prudentially ripe for review.

11 II. LIKELIHOOD OF SUCCESS ON THE MERITS

12

The Counties challenge the Executive Order on several constitutional grounds and bear the

13 burden of demonstrating a likelihood of success on the merits. The Government presents no

14 defense to these constitutional arguments; it focused on standing and ripeness. I conclude that the

15 Counties have demonstrated likely success on the merits in several ways.

16

A. Separation of Powers

17

The Counties argue that the Executive Order is unconstitutional because it seeks to wield

18 powers that belong exclusively to Congress, the spending powers. Article I of the Constitution

19 grants Congress the federal spending powers. See U.S. Const. art. I, § 8, cl. 1. “Incident to this

20 power, Congress may attach conditions on the receipt of federal funds, and has repeatedly

21 employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys

22 upon compliance by the recipient with federal statutory and administrative directives.’ ” South

23 Dakota v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

24 (emphasis added). While the President may veto a Congressional enactment under the

25 Presentment Clause, he must “either ‘approve all the parts of a Bill, or reject it in toto.’ ” City of

26 New York, 524 U.S. at 438 (quoting 33 Writings of George Washington 96 (J. Fitzpatrick ed.,

27 1940)). He cannot “repeal[] or amend[] parts of duly enacted statues” after they become law. Id.

28 at 439. 35

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1

This is true even if Congress has attempted to expressly delegate such power to the

2 President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,

3 which sought to grant the President the power to cancel particular direct spending and tax benefit

4 provisions in bills, was unconstitutional as it ran afoul of the “ ‘finely wrought’ procedures

5 commanded by the Constitution” for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.

6 919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to

7 spend appropriated funds, any delegation and discretion is cabined by these constitutional

8 boundaries.

9

After a bill becomes law, the President is required to “take Care that the Law be faithfully

10 executed.” See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give the President

11 discretion in allocating funds, the President has no constitutional authority to withhold such funds

12 and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.

13 See City of New York, 524 U.S. at 439; U.S. Const. art. I, § 8, cl. 1. Further, “[w]hen the President

14 takes measures incompatible with the expressed or implied will of Congress, his power is at its

15 lowest ebb . . .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

16 concurring). Congress has intentionally limited the ability of the President to withhold or

17 “impound” appropriated funds and has provided that the President may only do so after following

18 particular procedures and after receiving Congress’s express permission. See Impoundment

19 Control Act of 1974, 2 U.S.C. §§ 683 et seq.

20

The Executive Order runs afoul of these basic and fundamental constitutional structures.

21 The Order’s stated purpose is to “ensure that jurisdictions that fail to comply with applicable

22 Federal law do not receive Federal funds, except as mandated by law.” EO §2. To effectuate this

23 purpose, the Order directs that “the Attorney General and the Secretary, in their discretion and to

24 the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

25 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

26 necessary for law enforcement purposes by the Attorney General or the Secretary.” EO §9(a).

27 Section 9 purports to give the Attorney General and the Secretary the power to place a new

28 condition on federal funds (compliance with Section 1373) not provided for by Congress. But the 36

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1 President does not have the power to place conditions on federal funds and so cannot delegate this

2 power.

3

Section 9 is particularly problematic as Congress has repeatedly, and frequently, declined

4 to broadly condition federal funds or grants on compliance with Section 1373 or other federal

5 immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of

6 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

7 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary

8 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the President’s power

9 “at its lowest ebb.” Youngstown, 343 U.S. at 637. The Order’s attempt to place new conditions on

10 federal funds is an improper attempt to wield Congress’s exclusive spending power and is a

11 violation of the Constitution’s separation of powers principles.

12

B. Spending Clause Violations

13

The Counties also argue that, even if the President had the spending power, the Executive

14 Order would be unconstitutional under the Tenth Amendment as it exceeds those powers. The

15 Counties are likely to succeed on this claim as well.

16

While Congress has significant authority to encourage policy through its spending power,

17 the Supreme Court has articulated a number of limitations to the conditions Congress can place on

18 federal funds. The Executive Order likely violates at least three of these restrictions: (1)

19 conditions must be unambiguous and cannot be imposed after funds have already been accepted;

20 (2) there must be a nexus between the federal funds at issue and the federal program’s purpose;

21 and (3) the financial inducement cannot be coercive.

22

1. Unambiguous Requirement

23

When Congress places conditions on federal funds “it must do so unambiguously” so that

24 states and local jurisdictions contemplating whether to accept such funds can “exercise their

25 choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 203

26 (internal quotation marks omitted). Because states must opt-in to a federal program willingly,

27 fully aware of the associated conditions, Congress cannot implement new conditions after-the-fact.

28 See Nat’l Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602-04 (2012). “The 37

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1 legitimacy of Congress’s exercise of the spending power thus rests on whether the state

2 voluntarily and knowingly accepts the terms of the contract” at the time Congress offers the

3 money. Id. at 2602.

4

The Executive Order purports to retroactively condition all “federal grants” on compliance

5 with Section 1373. As this condition was not an unambiguous condition that the states and local

6 jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it

7 cannot be imposed now by the Order. In addition, while the Order’s language refers to all federal

8 grants, the Government’s lawyers say it only applies to three grants issued through the

9 Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties

10 cannot voluntarily and knowingly choose to accept the conditions on those funds.

11

Finally, as discussed infra in Section II.D., the Order’s vague language does not make

12 clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid its

13 penalties. See discussion re vagueness infra Section II.D. The unclear and untimely conditions in

14 the Executive Order fail the “unambiguous” restriction because the Order does not make clear to

15 states and local governments what funds are at issue and what conditions apply to those funds,

16 making it impossible for them to “voluntarily and knowingly accept[] the terms of the contract.”

17 NFIB, 132 S. Ct. at 2602.

18

2. Nexus Requirement

19

The conditions placed on congressional spending must have some nexus with the purpose

20 of the implicated funds. “Congress may condition grants under the spending power only in ways

21 reasonable related to the purpose of the federal program.” Dole, 483 U.S. at 213. This means that

22 funds conditioned on compliance with Section 1373 must have some nexus to immigration

23 enforcement.

24

The Executive Order’s attempt to condition all federal grants on compliance with Section

25 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and

26 most categories of federal funding, including without limitation funding related to Medicare,

27 Medicaid, transportation, child welfare services, immunization and vaccination programs, and

28 emergency preparedness. The Executive Order inverts the nexus requirement, directing the 38

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1 Attorney General and Secretary to cut off all federal grants to “sanctuary jurisdictions” but giving

2 them discretion to allow “sanctuary jurisdictions” to receive grants “deemed necessary for law

3 enforcement purposes.” EO § 9(a). As the subset of grants “deemed necessary for law

4 enforcement purposes” likely includes any federal funds related to immigration enforcement, the

5 Executive Order expressly targets for defunding grants with no nexus to immigration enforcement

6 at all. This is the precise opposite of what the nexus test requires.

7

3. Not Coercive Requirement

8

Finally, Congress cannot use the spending power in a way that compels local jurisdictions

9 to adopt certain policies. Congress cannot offer “financial inducement . . . so coercive as to pass

10 the point at which pressure turns to compulsion.” Dole, 483 U.S. at 211 (internal quotation marks

11 omitted). Legislation that “coerces a State to adopt a federal regulatory system as its own” “runs

12 contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602. States must have a “legitimate

13 choice whether to accept the federal conditions in exchange for federal funds.” Id. at 2602-2603.

14

In NFIB, the Supreme Court concluded that the Affordable Care Act’s threat of denying

15 Medicaid funds, which constituted over 10 percent of the State’s overall budget, was

16 unconstitutionally coercive and represented a “gun to the head.” Id. at 2604. The Executive Order

17 threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on

18 which the Counties rely. The threat is unconstitutionally coercive.

19

C. Tenth Amendment Violations

20

The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to

21 conscript states and local jurisdictions into carrying out federal immigration law. The Counties

22 are likely to succeed on this claim as well.

23

“The Federal Government may not compel the States to enact or administer a federal

24 regulatory program.” New York, 505 U.S. at 188. “The Federal Government may neither issue

25 directives requiring the States to address particular problems, nor command the States’ officers, or

26 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz

27 v. United States, 521 U.S. 898, 935 (1997). “That is true whether Congress directly commands a

28 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” 39

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1 NFIB, 132 S. Ct. at 2602.

2

As discussed with regard to the Counties’ standing arguments, the Counties have

3 demonstrated that under their reasonable interpretation, the Order equates “sanctuary

4 jurisdictions” with “any jurisdiction that ignored or otherwise failed to honor any detainers” and

5 therefore places such jurisdictions at risk of losing all federal grants. See EO §9(b). The Counties

6 have shown that losing all of their federal grant funding would have significant effects on their

7 ability to provide services to their residents and that they may have no legitimate choice regarding

8 whether to accept the government’s conditions in exchange for those funds. To the extent the

9 Executive Order seeks to condition all federal grants on honoring civil detainer requests, it is

10 likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local

11 jurisdictions to enforce a federal regulatory program through coercion.

12

Even if the Order does not condition federal grants on honoring detainer requests, it

13 certainly seeks to compel states and local jurisdictions to comply with civil detainers by directing

14 the Attorney General to “take appropriate enforcement action against any entity that violates 8

15 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

16 enforcement of Federal law.” EO §9(a). Although the Order provides no further clarification on

17 what this “enforcement” might entail or what policies might “hinder[] the enforcement of Federal

18 law,” Attorney General Sessions, who is tasked with implementing this provision, has equated

19 failure to honor civil detainer requests with policies that “frustrate th[e] enforcement of

20 immigration laws.” See Sessions Press Conference at 2. Reading the Order in light of the

21 Attorney General’s public statements, it threatens “enforcement action” against any jurisdiction

22 that refuses to comply with detainer requests or otherwise fails to enforce federal immigration law.

23 While this threat of “enforcement” is left vague and unexplained, “enforcement” by its own

24 definition means to “compel[] compliance.” See BLACK’S LAW DICTIONARY 645 (10th ed. 2014)

25 (defining “enforcement” as “The act or process of compelling compliance with a law, mandate,

26 command, decree, or agreement.”) By seeking to compel states and local jurisdictions to honor

27 civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth

28 Amendment’s provisions against conscription. 40

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1

The Supreme Court has repeatedly held that, “The Federal Government cannot compel the

2 States to enact or administer a federal regulatory program.” New York, 505 U.S. at 188. The

3 Government cannot command them to adopt certain policies, id. at 188, command them to carry

4 out federal programs, Printz, 521 U.S. at 935, or otherwise to “coerce them into adopting a federal

5 regulatory system as their own,” NFIB, 132 S. Ct. at 2602. The Executive Order uses coercive

6 means in an attempt to force states and local jurisdictions to honor civil detainer requests, which

7 are voluntary “requests” precisely because the federal government cannot command states to

8 comply with them under the Tenth Amendment. The Executive Order attempts to use coercive

9 methods to circumvent the Tenth Amendment’s direct prohibition against conscription. While the

10 federal government may incentivize states to adopt federal programs voluntarily, it cannot use

11 means that are so coercive as to compel their compliance. The Executive Order’s threat to pull all

12 federal grants from jurisdictions that refuse to honor detainer requests or to bring “enforcement

13 action” against them violates the Tenth Amendment’s prohibitions against commandeering.

14

D. Fifth Amendment Void for Vagueness

15

The Counties assert that the Executive Order is unconstitutionally vague in violation of the

16 Fifth Amendment’s Due Process Clause. A law is unconstitutionally vague and void under the

17 Fifth Amendment if it fails to make clear what conduct it prohibits and if it fails to lay out clear

18 standards for enforcement. See Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To

19 satisfy due process we insist that laws (1) “give the person of ordinary intelligence a reasonable

20 opportunity to know what is prohibited, so that he may act accordingly” and (2) “provide explicit

21 standards for those who apply them.” Id. The Executive Order does not meet either of these

22 requirements.

23

The Executive Order does not make clear what conduct might subject a state or local

24 jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to

25 determine how to modify their conduct, if at all, to avoid the Order’s penalties. The Order clearly

26 directs the Attorney General and Secretary to ensure that jurisdictions that “willfully refuse to

27 comply” with Section 1373, “sanctuary jurisdictions,” are not eligible to receive federal grants.

28 The Government repeatedly emphasizes in its briefing that it does not know what it means to 41

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1 “willfully refuse to comply” with Section 1373. See, SC Oppo. at 11. Past DOJ guidance and

2 various court cases interpreting Section 1373 have not reached consistent conclusions as to what

3 1373 requires. In the face of conflicting guidance, and no clear standard from the Government,

4 jurisdictions do not know how to avoid the Order’s defunding penalty.

5

Further, because the Order does not clearly define “sanctuary jurisdictions” the conduct

6 that will subject a jurisdiction to defunding under the Order is not fully outlined. This is further

7 complicated because the Order gives the Secretary unlimited discretion to make “sanctuary

8 jurisdiction” designations. But, at least as of two months ago, the Secretary himself stated that he

9 “do[esn’t] have a clue” how to define “sanctuary city.” Harris Decl. ex. D (Dep’t of Homeland

10 Sec., Pool Notes from Secretary Kelly’s Trip to San Diego, Feb. 10, 2017) at 3 (SC Dkt. No. 36-

11 4). If the Secretary has unbounded discretion to designate “sanctuary jurisdictions” but has no

12 idea how to define that term, states and local jurisdictions have no hope of deciphering what

13 conduct might result in an unfavorable “sanctuary jurisdiction” designation.

14

In addition, the Order directs the Attorney General to take “appropriate enforcement

15 action” against any jurisdiction that willfully refuses to comply with Section 1373 or otherwise

16 has a policy or practice that “hinders the enforcement of Federal law.” This provision vastly

17 expands the scope of the Order. What does it mean to “hinder” the enforcement of federal law?

18 What federal law is at issue: immigration laws? All federal laws? The Order offers no

19 clarification.

20

The Order also fails to provide clear standards to the Secretary and the Attorney General to

21 prevent “arbitrary and discriminatory enforcement.” Id. As discussed above, the Order gives the

22 Secretary discretion to designate jurisdictions as “sanctuary jurisdictions” to the extent consistent

23 with law. But there are no laws, besides the Order, outlining what a sanctuary jurisdiction is,

24 leaving the Secretary with unfettered discretion and the Order’s vague language to make

25 “sanctuary jurisdiction” designations. Similarly, the Order directs the Attorney General to take

26 “appropriate enforcement action” against any jurisdiction that “hinders the enforcement of Federal

27 law.” This expansive, standardless language creates huge potential for arbitrary and

28 discriminatory enforcement, leaving the Attorney General to figure out what “appropriate 42

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1 enforcement action” might entail and what policies and practices might “hinder[] the enforcement

2 of Federal law.” This language is “so standardless that it authorizes or encourages seriously

3 discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

4

The Order gives the Counties no clear guidance on how to comply with its provisions or

5 what penalties will result from non-compliance. Its standardless guidance and enforcement

6 provisions are also likely to result in arbitrary and discriminatory enforcement. It does not “give

7 the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

8 may act accordingly.” Gaynard, 408 U.S. at 108. The Counties are likely to succeed in their

9 argument that Section 9(a) is void for vagueness under the Fifth Amendment.

10

E. Fifth Amendment Procedural Due Process Violations

11

The Counties assert that the Executive Order fails to provide them with procedural due

12 process in violation of the Fifth Amendment. To sustain a valid procedural due process claim a

13 person must demonstrate that he has a legally protectable property interest and that he has suffered

14 or will suffer a deprivation of that property without adequate process. See Thorton v. City of St.

15 Helens, 425 F.3d 1158, 1164 (9th Cir. 2005).

16

To have a legitimate property interest, a person “must have more than a unilateral

17 expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v.

18 Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement

19 to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132

20 S. Ct. at 2602 (“The legitimacy of Congress’ power to legislate under the spending power [] rests

21 on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”). The

22 Counties have a legitimate property interest in federal funds that Congress has already

23 appropriated and that the Counties have accepted.

24

The Executive Order purports to make the Counties ineligible to receive these funds

25 through a discretionary and undefined process. The Order directs the Attorney General and

26 Secretary to designate various states and local jurisdictions as “sanctuary jurisdictions,” ensure

27 that such jurisdictions are “not eligible” to receive federal grants, and “take enforcement action”

28 against them. EO §9(a). It does not direct the Attorney General or Secretary to provide 43

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1 “sanctuary jurisdictions” with any notice of an unfavorable designation or impending cut to

2 funding. And it does not set up any administrative or judicial procedure for states and local

3 jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against

4 them under the Order. This complete lack of process violates the Fifth Amendment’s due process

5 requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (“The essence of due process is the

6 requirement that a person in jeopardy of serious loss be given notice of the case against him and

7 opportunity to meet it.”) (internal alterations and quotations omitted).

8

The Government’s only defense of the Order’s lack of process is to claim that Section 9’s

9 provision that it be implemented “consistent with law” reads in all necessary procedural

10 requirements. Again, the Government’s attempt to resolve all of the Order’s constitutional

11 infirmities with a “consistent with law” bandage is not convincing. There is no dispute that while

12 the Order commands the Secretary to designate certain jurisdictions as ineligible for federal grants

13 and directs the Attorney General to bring an “enforcement action” against them, it provides no

14 process at all for notifying jurisdictions about such a determination and provides them no

15 opportunity to be heard. The Counties are likely to succeed on their claim that the Order fails to

16 provide adequate due process in violation of the Fifth Amendment.

17 III. IRREPARABLE HARM

18

The Counties assert that, absent an injunction enjoining Section 9, they are likely to suffer

19 irreparable harm resulting from their current budget uncertainty. Alternatively, they argue that

20 they are suffering a constitutional injury, as the Order improperly seeks to coerce them into

21 changing their policies in violation of the Tenth Amendment. The Counties have adequately

22 demonstrated that they are likely to suffer irreparable harm under both of these theories.

23

A. Budgetary Uncertainty

24

The Counties allege that they are currently suffering irreparable injury resulting from the

25 substantial uncertainty caused by the Order’s unclear terms and its broad and undefined scope. As

26 discussed above, this uncertainty is causing the Counties present injury sufficient to satisfy Article

27 III’s standing requirements. See discussion supra Section I.A.2.d.

28

This budget uncertainty is also causing the Counties irreparable harm, and it will continue

44

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1 to do so absent an injunction. The Order’s uncertainty interferes with the Counties’ ability to

2 budget, plan for the future, and properly serve their residents. Without clarification regarding the

3 Order’s scope or legality, the Counties will be obligated to take steps to mitigate the risk of losing

4 millions of dollars in federal funding, which will include placing funds in reserve and making cuts

5 to services. These mitigating steps will cause the Counties irreparable harm. See United States v.

6 North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 2016) (there was irreparable harm where the

7 unavailability of funds was “likely to have an immediate impact on [the state’s] ability to provide

8 critical resources to the public, causing damage that would persist regardless of whether funding

9 [was] subsequently reinstated”).

10

Although Government counsel has represented that the Order will be implemented

11 consistent with law, this assurance is undermined by Section 9(a)’s clearly unconstitutional

12 directives. Further, through public statements, the President and Attorney General have appeared

13 to endorse the broadest reading of the Order. Is the Order merely a rhetorical device, as counsel

14 suggested at the hearing, or a “weapon” to defund the Counties and those who have implemented a

15 different law enforcement strategy than the Government currently believes is desirable? The

16 result of this schizophrenic approach to the Order is that the Counties’ worst fears are not allayed

17 and the Counties reasonably fear enforcement under the Order.

18

The Order’s broad directive and unclear terms, and the President’s and Attorney General’s

19 endorsement of them, has caused substantial confusion and justified fear among states and local

20 jurisdictions that they will lose all federal grant funding at the very least. The threat of the Order

21 and the uncertainty it is causing impermissibly interferes with the Counties’ ability to operate, to

22 provide key services, to plan for the future, and to budget. The Counties have established that,

23 absent an injunction, they are likely to suffer irreparable harm.

24

B. Constitutional Injury

25

The Counties also argue that they are likely to suffer irreparable harm because the

26 Executive Order contravenes the separation of powers, conscripts the Counties to carry out federal

27 immigration enforcement policies, and seeks to coerce the Counties into changing their local

28 policies by imposing overwhelming financial penalties without due process. This “constitutional 45

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United States District Court Northern District of California

1 injury” also constitutes irreparable harm.

2

The Ninth Circuit has repeatedly held that “the deprivation of constitutional rights

3 ‘unquestionably constitutes irreparable injury.’ ” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

4 Cir. 2012); Rodriguez v. Robbins, 715 F.3d 1127, 1144-45 (9th Cir. 2013). A plaintiff can suffer a

5 constitutional injury by being forced to comply with an unconstitutional law or else face financial

6 injury or enforcement action. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

7 1046, 1058-59 (9th Cir. 2009) (plaintiffs were injured where they were faced with the choice of

8 signing unconstitutional agreements or facing a loss of customer goodwill and significant

9 business). The Supreme Court has similarly indicated that plaintiffs suffer irreparable injury

10 under such circumstances. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 380-381

11 (1992) (injunctive relief was available where “respondents were faced with a Hobson’s choice:

12 continually violate the Texas law and expose themselves to potentially huge liability; or violate

13 the law once as a test case and suffer the injury of obeying the law during the pendency of the

14 proceedings and any further review”). Where an executive action causes constitutional injuries,

15 injunctive relief is appropriate. See Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017)

16 (refusing to stay a preliminary injunction on Executive Order 13769 and reaffirming that a

17 “deprivation of constitutional rights unquestionably constitutes irreparable injury”).

18

The Counties currently must choose either to attempt to comply with the Executive Order,

19 which they have alleged is unconstitutional under the Constitution’s separation of powers

20 structures and violates their Tenth and Fifth Amendment rights, or to defy the Order and risk

21 losing hundreds of millions of dollars in federal grants. By forcing the Counties to make this

22 unreasonable choice, the Order results in a constitutional injury sufficient to establish standing and

23 irreparable harm.

24

The Government argues that while a “deprivation of constitutional rights unquestionably

25 constitutes irreparable injury,” the Counties have not alleged a “deprivation” of their constitutional

26 rights but have instead alleged a violation of the constitutional structures that govern relationships

27 among the branches of the Federal Government. It asserts that there is a distinction between

28 violations of personal constitutional rights and violations of structural provisions. See N.Y. State 46

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United States District Court Northern District of California

1 Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 367 (S.D.N.Y. 2008) (“[W]hile a

2 violation of constitutional rights can constitute per se irreparable harm . . . per se irreparable harm

3 is caused only by violations of ‘personal’ constitutional rights . . . to be distinguished from

4 provisions of the Constitution that serve ‘structural’ purposes, like the Supremacy Clause.”).

5

This argument fails for two reasons. First, this distinction between personal and structural

6 constitutional rights is not recognized in the Ninth Circuit. Although the Government cites to

7 American Trucking Ass’ns v. City of Los Angeles, 577 F. Supp. 2d 1110, 1127 (C.D. Cal. 2008) for

8 the proposition that “in the case of Supremacy Clause violations,” the presumption of irreparable

9 harm “is not necessarily warranted,” that case was reversed by the Ninth Circuit. On appeal the

10 court concluded that, even where the constitutional injury is structural, “the constitutional

11 violation alone, coupled with the damages incurred, can suffice to show irreparable harm.”

12 American Trucking, 559 F.3d at 1058. Second, the Counties have alleged a deprivation of their

13 personal constitutional rights; they have alleged that the Executive Order is unconstitutionally

14 coercive in violation of the Tenth Amendment and fails to provide them with Due Process in

15 violation of the Fifth Amendment. The Government’s challenges to the Counties’ claims of

16 constitutional injury are not supported by the facts of this case or the precedent that is binding on

17 this court.

18

The Counties have adequately demonstrated a constitutional injury sufficient to establish a

19 likelihood of irreparable harm.

20 IV. BALANCE OF HARMS AND PUBLIC INTEREST

21

A party seeking a preliminary injunction must “establish . . . that the balance of equities

22 tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. When the

23 federal government is a party, these factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

24

The Government argues that the balance of harms and the public interest weigh against a

25 preliminary injunction because the “most pertinent and concretely expressed public interest” in

26 this case is contained in Section 1373, and Section 9 simply seeks to ensure compliance with that

27 section. This argument is unconvincing given the Government’s flawed argument that Section 9

28 does not change the law. If Section 9 does not change the law, or if the Government does not 47

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United States District Court Northern District of California

1 intend to enforce Section 9’s unlawful directives, then it provides the Government with no

2 concrete benefit but to highlight the President’s enforcement priorities. The President certainly

3 has the right to use the bully pulpit to encourage his policies. But Section 9(a) is not simply

4 rhetorical. The Counties have a strong interest in avoiding unconstitutional federal enforcement

5 and the significant budget uncertainty that has resulted from the Order’s broad and threatening

6 language. To the extent the Government wishes to use all lawful means to enforce 8 U.S.C. 1373,

7 it does not need Section 9(a) to do so. The confusion caused by Section 9(a)’s facially

8 unconstitutional directives and its coercive effects weigh heavily against leaving it in place. The

9 balance of harms weighs in favor of an injunction.

10 V. 11

NATIONWIDE INJUNCTION The Government argues that, if an injunction is issued, it should be issued only with

12 regards to the plaintiffs and should not apply nationwide. But where a law is unconstitutional on

13 its face, and not simply in its application to certain plaintiffs, a nationwide injunction is

14 appropriate. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive

15 relief is dictated by the extent of the violation established, not by the geographical extent of the

16 plaintiff.”); Washington, 847 F.3d at 1166-67 (affirming nationwide injunction against executive

17 travel ban order). The Counties have demonstrated that they are likely to succeed on their claims

18 that the Executive Order purports to wield powers exclusive to Congress, and violates the Tenth

19 and Fifth Amendments. These constitutional violations are not limited to San Francisco or Santa

20 Clara, but apply equally to all states and local jurisdictions. Given the nationwide scope of the

21 Order, and its apparent constitutional flaws, a nationwide injunction is appropriate.

22 VI. INJUNCTION AGAINST THE PRESIDENT

23

The Government also argues that, if an injunction is issued, it should not issue against the

24 President. An injunction against the President personally is an “extraordinary measure not lightly

25 to be undertaken.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); see Newdow v. Bush, 391

26 F. Supp. 2d 95, 106 (D.D.C. 2005) (“[T]he Supreme Court has sent a clear message that an

27 injunction should not be issued against the President for official acts.”). The Counties assert that

28 the court “has discretion to determine whether the constitutional violations in the Executive Order 48

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United States District Court Northern District of California

1 may be remedied by an injunction against the named inferior officers, or whether this is an

2 extraordinary circumstance where injunctive relief against the President himself is warranted.”

3

I conclude that an injunction against the President is not appropriate. The Counties seek to

4 enjoin the Executive Order which directs the Attorney General and the Secretary to carry out the

5 provisions of Section 9. The President has no role in implementing Section 9. It is not clear how

6 an injunction against the President would remedy the constitutional violations the Counties have

7 alleged. On these facts, the extraordinary remedy of enjoining the President himself is not

8 appropriate.

9

CONCLUSION

10

The Counties have demonstrated that they are likely to succeed on the merits of their

11 challenge to Section 9(a) of the Executive Order, that they will suffer irreparable harm absent an

12 injunction, and that the balance of harms and public interest weigh in their favor. The Counties’

13 motions for a nationwide preliminary injunction, enjoining enforcement of Section 9(a), are

14 GRANTED. The defendants (other than the President) are enjoined from enforcing Section 9(a)

15 of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction

16 does not impact the Government’s ability to use lawful means to enforce existing conditions of

17 federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or

18 preparing guidance on designating a jurisdiction as a “sanctuary jurisdiction.”

19

IT IS SO ORDERED.

20 Dated: April 25, 2017

21

22

23

William H. Orrick United States District Judge

24

25

26

27

28 49

 
 Case 3:17-cv-00485-WHO Document 83 Filed 04/25/17 Page 1 of 12

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

JOINT CASE MANAGEMENT STATEMENT

Plaintiff,

19

Date:

May 2, 2017

vs.

Time:

1:30 p.m.

20

Judge:

Honorable William H. Orrick

DONALD J. TRUMP, President of the United Dept.:

Courtroom 2

21 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

Date Filed: January 31, 2017

JEFFERSON B. SESSIONS III, Attorney

Trial Date: Not set

23 General of the United States, DOES 1-100,

24

Defendants.

25

26

27

28
Joint Case Management Statement; CCSF v. President Trump, et al; Case No. 17-00485

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1

Plaintiff City and County of San Francisco (“Plaintiff” or “San Francisco”) and Defendants

2 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,

3 JOHN F. KELLY, Secretary of the United States Department of Homeland Security, and

4 JEFFERSON B. SESSIONS III, Attorney General of the United States (“Defendants”) respectfully

5 submit this Joint Case Management Statement pursuant to Rules 16 and 26 of the Federal Rules of

6 Civil Procedure and this Court’s Standing Order titled “Contents of Joint Case Management

7 Statement.” Counsel for the parties met and conferred on these matters on April 11, 2017, and

8 April 21, 2017.

9

1. Jurisdiction and Service

10

San Francisco’s claims arise under the Constitution of the United States, the Tenth Amendment

11 thereto, and the laws of the United States. This Court has jurisdiction under 28 U.S.C. Sections 1331

12 and 1346. This Court has further remedial authority under the Declaratory Judgment Act, 28 U.S.C.

13 Sections 2201 and 2202 et seq.

14

No issues exist regarding personal jurisdiction or venue, and all named defendants have been

15 served.

16

Plaintiff asserts that the Court has subject matter jurisdiction and that its claims are ripe.

17 Defendants dispute subject matter jurisdiction on the grounds that San Francisco does not have

18 standing and that its claims are not ripe.

19

2. Facts

20

Plaintiff’s Statement

21

San Francisco’s body of Sanctuary City law is contained in two chapters of San Francisco’s

22 Administrative Code: Chapters 12H and 12I. Chapter 12H generally prohibits San Francisco

23 departments, agencies, commissions, officers, and employees from using City funds or resources to

24 assist in the enforcement of Federal immigration law, and specifically prohibits using City resources to

25 gather or disseminate information regarding the release status or other confidential identifying

26 information of individuals, unless such assistance is required by Federal or state law. Chapter 12I

27 prohibits San Francisco law enforcement officials from (1) detaining an individual who is otherwise

28 eligible for release from custody on the basis of a civil immigration detainer request issued by the

Joint Case Management Statement;

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1 Federal government and (2) responding to a federal immigration officer’s request for advance

2 notification of the date and time an individual in San Francisco’s custody is being released, unless the

3 individual in question meets certain criteria. San Francisco departments have adopted and

4 implemented policies consistent with Chapters 12H and 12I.

5

On January 25, 2017, President Donald J. Trump issued Executive Order Number 13768,

6 entitled “Enhancing Public Safety in the Interior of the United States.” The Executive Order declares,

7 “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield

8 aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the

9 American people and to the very fabric of our Republic.” Executive Order § 1. To address the

10 purported harm caused by Sanctuary Cities, the Executive Order establishes the policy that

11 “jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as

12 mandated by law.” Id. at § 2. Section 9 of the Executive Order states:

13

It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C.

14

1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in

15

their discretion and to the extent consistent with law, shall ensure that

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

16

jurisdictions) are not eligible to receive Federal grants, except as deemed

necessary for law enforcement purposes by the Attorney General or the

17

Secretary. The Secretary has the authority to designate, in his discretion and to

the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The

18

Attorney General shall take appropriate enforcement action against any entity

that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice

19

that prevents or hinders the enforcement of Federal law.

20

(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer

21

Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction

22

that ignored or otherwise failed to honor any detainers with respect to such aliens.

23

(c) The Director of the Office of Management and Budget is directed to obtain

and provide relevant and responsive information on all Federal grant money that

24

currently is received by any sanctuary jurisdiction.

25

Defendants have made statements regarding the scope and application of this executive order

26 in public, as well as in court arguments and filings. It is San Francisco’s position that it will inevitably

27 be designated as a “Sanctuary Jurisdiction” and that there are remaining questions about the precise

28 consequences that will flow from that designation.

Joint Case Management Statement;

2

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1

San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in

2 federal funds. In addition, San Francisco expects to receive an additional $800 million in federal multi-

3 year grants, largely for public infrastructure projects.

4

Defendants’ Statement

5

Defendants are in the process of making several decisions and taking several steps that must be

6 completed in order to implement the Executive Order. Defendants have not determined that any

7 jurisdiction is a “sanctuary jurisdiction” under the Order.

8

3. Legal Issues

9

Plaintiff’s Statement

10

San Francisco’s Complaint raises the following legal issues:

11

A. Whether Section 9(a) of the Executive Order violates separation of powers as

12

set forth in Article I, sec. 1 of the United States Constitution by exercising

13

Spending Power that the Constitution grants to Congress.

14

B. Whether Section 9(a) of the Executive Order violates the Tenth Amendment and

15

the Spending Clause of the United States Constitution by:

16

1. Imposing new funding conditions on existing federal funds;

17

2. Imposing funding conditions not germane to the purpose of the funds;

18

3. Imposing funding conditions so severe as to coerce compliance; and

19

4. Imposing funding conditions that require jurisdictions to act

20

unconstitutionally.

21

C. Whether Section 9(a) of the Executive Order violates the Tenth Amendment to

22

the United States Constitution by commandeering state and local governments

23

by, inter alia, compelling them to comply with detainer requests.

24

D. Whether 8 U.S.C. Section 1373 violates the Tenth Amendment to the United

25

States Constitution on its face and as applied to San Francisco.

26

E. Whether San Francisco laws and policies comply with 8 U.S.C. Section 1373.

27

F. Whether San Francisco is entitled to a preliminary and permanent injunction,

28

declaratory relief, and other relief as stated in the Complaint.

Joint Case Management Statement;

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1

Defendants’ Statement

2

This action presents the following legal issues:

3

A. Whether the plaintiff’s claims are constitutionally ripe for judicial review.

4

B. Whether the plaintiff satisfies the requirements for constitutional standing.

5

C. Whether the plaintiff has stated a viable claim that 8 U.S.C. § 1373 violates the

6

Tenth Amendment.

7

D. Whether the plaintiff has stated a viable claim for declaratory relief regarding its

8

compliance with 8 U.S.C. § 1373.

9

E. Whether the plaintiff’s law and policies violate 8 U.S.C. § 1373.

10

F. Whether 8 U.S.C. § 1373 violates the Tenth Amendment.

11

G. Whether Section 9(a) of the Executive Order violates the Tenth Amendment,

12

the Separation of Powers, or the Spending Clause.

13

4. Motions

14

The Court heard argument on San Francisco’s Motion for Preliminary Injunction on

15 April 14, 2017, and took the matter under submission. The Court issued an Order Granting the County

16 of Santa Clara’s and City and County of San Francisco’s Motions to Enjoin Section 9(a) of the

17 Executive Order 13768.

18

Defendants anticipate filing a motion to dismiss by April 28, 2017, which will be noticed for

19 hearing on June 7, 2017, if that date remains available on the Court’s calendar at the time of filing.

20 San Francisco anticipates filing a motion for summary judgment and may file motions related to

21 discovery disputes, if there are disputes the parties are unable to resolve.

22

5. Amendment of Pleadings

23

The parties do not plan to amend the pleadings.

24

6. Evidence Preservation

25

The parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored

26 Information (“ESI Guidelines”), and have met and conferred pursuant to Fed. R. Civ. P. 26(f)

27 regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues

28 //

Joint Case Management Statement;

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1 reasonably evident in this action. The parties have begun conferring regarding ESI protocols and will

2 continue to meet and confer on this topic.

3

San Francisco has put into effect procedures to preserve hard copy and electronic records

4 relating to San Francisco Administrative Code Chapters 12H or 12I; the City’s Sanctuary City

5 policies; and the impact of the Executive Order on the City’s budget, finances, or operations. The time

6 period covered is January 12, 2016 to the present.

7

Defendants are in the process of implementing a litigation hold to preserve hard copy and

8 electronic records relating to the Executive Order and its implementation. The time period covered

9 will be January 25, 2017, to the present.

10

7. Disclosures

11

The parties will exchange the initial disclosures required by Fed. R. Civ. P. 26(a) on or before

12 May 10, 2017. If Defendants have a preliminary injunction hearing on that date in City of Richmond v.

13 Trump et al., 17-cv-01535-WHO, the parties agree to extend the deadline for exchange of initial

14 disclosures to May 11, 2017.

15

8. Discovery

16

No discovery has been taken to date.

17

Plaintiff anticipates serving written discovery in April 2017, including interrogatories, requests

18 for admissions, and requests for documents regarding the scope, definitions, and application of the

19 Executive Order, including what federal funds are implicated; the status and designation of

20 San Francisco as a Sanctuary Jurisdiction and the consequences of that designation under the

21 Executive Order; Defendants’ interpretation of 8 U.S.C. Section 1373 and whether Defendants

22 contend that San Francisco’s laws and policies violate 8 U.S.C. Section 1373; and Defendants’

23 position regarding the nature of detainer requests. Depending on Defendants’ responses, Plaintiff may

24 serve additional discovery and/or notice depositions. Unless there are unusually protracted discovery

25 disputes, Plaintiff anticipates being able to conclude discovery by Fall 2017.

26

Defendants believe discovery is not appropriate until the Court has resolved subject matter

27 jurisdiction in deciding Defendants’ forthcoming Motion to Dismiss. Defendants reserve the right to

28 propound discovery requests upon the plaintiff.

Joint Case Management Statement;

5

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1

The parties have agreed to electronic service for discovery. They have not agreed to any other

2 proposed limitations or modifications of the discovery rules, and they have not yet considered entering

3 into a stipulated e-discovery order. The parties are willing to meet and confer on this and other topics

4 as necessary.

5

The parties propose the following Rule 26(f) Discovery Plan.

6

A. Initial Disclosures

7

As noted in item 7 above, the parties intend to exchange initial disclosures on or before

8

May 10 or 11, 2017. No changes in form or substance are necessary.

9

B. Discovery subjects and timing

10

Plaintiff intends to propound discovery on the topics noted above. In order to facilitate

11

dispositive motions, Plaintiff proposes that discovery should be complete by October 31,

12

2017.

13

C. Issues about disclosure, discovery, or preservation of electronically stored information

14

No issues have arisen at this stage.

15

D. Privilege and protections

16

The parties may assert privileges and protections, and if needed, will meet and confer

17

regarding a stipulated protective order.

18

E. Discovery limitations

19

As noted above, Defendants take the position that discovery is not appropriate until the

20

Court has resolved subject matter jurisdiction in deciding Defendants’ forthcoming Motion

21

to Dismiss. Plaintiff disagrees. The parties have not discussed other discovery limitations.

22

F. Other orders

23

The parties do not seek any discovery orders at this stage.

24

9. Class Actions

25

This is not a class action.

26

10. Related Cases

27

This action is related to two other cases pending in the Northern District of California:

28

 County of Santa Clara v. Donald J. Trump et al., 17-cv-00574-WHO

Joint Case Management Statement;

6

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1

 City of Richmond v. Trump et al., 17-cv-01535-WHO

2

The parties are aware of two other pending cases challenging Section 9 of the Executive Order

3 and/or 8 U.S.C. Section 1373:

4

 City of Seattle v. Trump, 2:17-cv-00497 (W.D. Wash.)

5

 City of Chelsea et al. v. Trump, 1:17-cv-10214-GAO (D. Mass)

6

11. Relief

7

San Francisco requests that the Court:

8

A. Declare that San Francisco laws comply with Section 1373;

9

B. Declare that San Francisco policies and practices comply with Section 1373;

10

C. Preliminarily and permanently enjoin Defendants from designating

11

San Francisco as a jurisdiction that fails to comply with Section 1373;

12

D. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face;

13

E. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for

14

receiving federal funds;

15

F. Declare that Section 1373(a) is invalid as applied to state and local Sanctuary

16

City laws, like San Francisco Administrative Code Chapters 12H and 12I,

17

which were enacted for legitimate local purposes related to public health and

18

safety;

19

G. Preliminarily and permanently enjoin Defendants from enforcing Section

20

1373(a) against jurisdictions that enact Sanctuary City laws for legitimate local

21

purposes;

22

H. Declare the Funding Restriction in Executive Order invalid;

23

I. Preliminarily and permanently enjoin Defendants from enforcing the Funding

24

Restriction in the Executive Order;

25

J. Declare the Enforcement Directive in Executive Order invalid;

26

K. Preliminarily and permanently enjoin unconstitutional applications of the

27

Enforcement Directive in Executive Order Section 9(a);

28

L. Award San Francisco reasonable costs and attorney’s fees; and

Joint Case Management Statement;

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1

M. Grant any other further relief that the Court deems fit and proper.

2

12. Settlement and ADR

3

The parties agree this case is unlikely to be resolved through settlement or ADR.

4

13. Consent to Magistrate Judge for All Purposes

5

The parties do not consent to have a magistrate judge conduct all further proceedings including

6 trial and entry of judgment.

7

14. Other References

8

The parties agree this case is not suitable for reference to binding arbitration, a special master,

9 or the Judicial Panel on Multidistrict Litigation.

10

15. Narrowing of Issues

11

Defendants’ forthcoming motion to dismiss will seek to narrow the issues in this case.

12

The parties will continue to meet and confer in an attempt to narrow the issues to be decided.

13

16. Expedited Trial Procedure

14

The parties agree this is not the type of case that can be handled under the Expedited Trial

15 Procedure of General Order No. 64.

16

17. Scheduling

17

The parties propose the following schedules. Defendants believe it is premature to propose

18 dates for discovery cutoff, pretrial deadlines, or trial.

19

20 Event

Plaintiff’s Proposed Schedule

21 Deadline for Defendants to file

22 a Rule 12 Motion or otherwise April 28, 2017 respond to the Complaint

23 Deadline for the parties to
24 exchange initial disclosures per Rule 26
25 Close of fact discovery

May 10 or 11, 2017 (see item 7, above)
October 31, 2017

26 27

Deadline for filing dispositive motions

November 30, 2017

Defendants’ Proposed Schedule
April 28, 2017
May 10 or 11, 2017 (see item 7, above) N/A N/A

28

Joint Case Management Statement;

8

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1 Event

Plaintiff’s Proposed Schedule

2 Last day to exchange papers

3 described in Civil L.R. 16-

4

10(b)(7),(8),(9) and (10) and any motions in limine (at least

January 26, 2018

28 days before Pre-Trial 5 Conference)

6 Last day to meet and confer

7

before pre-trial conference (at least 21 days prior to pretrial

February 2, 2018

8 conference)

Deadline to file pre-trial 9 conference statement,

10 proposed Findings of Fact and

Conclusions of Law, and

February 9, 2018

11 motions in limine (at least 14
days prior to pretrial 12 conference)

Defendants’ Proposed Schedule N/A
N/A
N/A

13 Deadline to file response

14

briefs to motions in limine (at least 7 days prior to pretrial

February 16, 2018

N/A

15 conference)

Final pretrial conference

February 26, 2018

N/A

16

Trial

March 5, 2018

N/A

17

18

18. Trial

19

The parties agree that a bench trial would be appropriate in this case, if a trial is needed. They

20 estimate a trial length of five days.

21

19. Disclosure of Non-Party Interested Entities or Persons

22

The parties are government entities and officials; therefore Civil Local Rule 3-15 does not

23 apply.

24

20. Professional Conduct

25

All attorneys of record have reviewed the Guidelines for Professional Conduct for the Northern

26 District of California.

27 //

28 //

Joint Case Management Statement;

9

CCSF v. President Trump, et al; Case No. 17-00485

N:\CXLIT\LI2017\171027\01187719.docx

Case 3:17-cv-00485-WHO Document 83 Filed 04/25/17 Page 11 of 12

1

21. Other Matters

2

The parties have no other matters to report.

3

4 Dated: April 25, 2017

Dated: April 25, 2017

5 CHAD A. READLER Acting Assistant Attorney General
6 BRIAN STRETCH United States Attorney
7 JOHN R. TYLER Assistant Director
8 W. SCOTT SIMPSON Senior Trial Counsel
9

10 By: /s/ W. Scott Simpson

W. SCOTT SIMPSON (Va. Bar #27487)

11

Senior Trial Counsel

DENNIS J. HERRERA City Attorney RONALD FLYNN JESSE C. SMITH YVONNE R. MERÉ CHRISTINE VAN AKEN TARA STEELEY MOLLIE M. LEE SARA J. EISENBERG MATTHEW S. LEE NEHA GUPTA
Deputy City Attorneys

12 Attorneys, Department of Justice

Civil Division, Room 7210 13 Federal Programs Branch

Post Office Box 883 14 Washington, DC 20044
Telephone: (202) 514-3495 15 Facsimile: (202) 616-8470

By: /s/ Mollie M. Lee MOLLIE M. LEE Deputy City Attorney

Email: scott.simpson@usdoj.gov 16

Attorneys for Plaintiff

COUNSEL FOR DEFENDANTS 17 DONALD J. TRUMP, President of the United

CITY AND COUNTY OF SAN FRANCISCO

States; JOHN F. KELLY, Secretary of Homeland 18 Security; JEFFERSON B. SESSIONS, III,

Attorney General of the United States; and 19 UNITED STATES OF AMERICA

20

21

22

23

24

25

26

27

28

Joint Case Management Statement;

10

CCSF v. President Trump, et al; Case No. 17-00485

N:\CXLIT\LI2017\171027\01187719.docx

Case 3:17-cv-00485-WHO Document 83 Filed 04/25/17 Page 12 of 12

1

FILER’S ATTESTATION

2

I, Mollie M. Lee, am the ECF user whose identification and password are being used to file

3 this JOINT CASE MANAGEMENT STATEMENT. Pursuant to Civil Local Rule 5-1(i)(3), I hereby

4 attest that the other above-named signatories concur in this filing.

5

6 Dated: April 25, 2017 7 8 9 10

By: /s/ Mollie M. Lee MOLLIE M. LEE Deputy City Attorney
Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Joint Case Management Statement;

11

CCSF v. President Trump, et al; Case No. 17-00485

N:\CXLIT\LI2017\171027\01187719.docx

 
 Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 1 of 8

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

STEPHEN J. BUCKINGHAM (Md. Bar)
5 Special Counsel

6

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel

7 Department of Justice, Room 7210
Civil Division, Federal Programs Branch

8 Post Office Box 883

Washington, D.C. 20044
9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@usdoj.gov

11 COUNSEL FOR DEFENDANTS
(See signature page for parties represented.)

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15
SAN FRANCISCO DIVISION

16

CITY AND COUNTY OF SAN
17 FRANCISCO,

No. 3:17-cv-00485-WHO

18

Plaintiff,

19

v.

20 DONALD J. TRUMP, et al.,

DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION OF THE COURT’S ORDER OF APRIL 25, 2017

21

Defendants.

22

INTRODUCTION

23

Pursuant to Civil Local Rule 7-9, defendants respectfully move for leave to file the

24 attached Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order of

25 April 25, 2017, granting plaintiff’s motion for preliminary injunction. See Order (Doc. 82).

26 Consistent with Civil Local Rule 7-9(b), the basis for this motion is the emergence of new

27 authority, namely the Memorandum recently issued by the Attorney General (“AG

28 Memorandum”) concerning the implementation of Executive Order 13,768. See AG Mem. at 1

Defs’ Mot. for Leave: Reconsid. No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 2 of 8

1 (Attachment 1 hereto); see also Exec. Order No. 13,768 (“Executive Order”), 82 Fed. Reg. 8,799-

2 8,803 (Jan. 30, 2017).

3

The AG Memorandum, which was issued after briefing and oral argument had occurred

4 on plaintiff’s motion for a preliminary injunction, conclusively sets forth the legal position of the

5 United States regarding the scope of the grant-eligibility provision of Section 9(a) of the

6 Executive Order. The guidance contained in the Memorandum contradicts many of the bases

7 upon which the Court relied in reaching its conclusions that plaintiff established the justiciability

8 of its claims and demonstrated a likelihood of success on the merits of those claims. Specifically,

9 reflecting statements by defendants’ counsel at oral argument, the AG Memorandum provides

10 that the grant-eligibility provision of Section 9(a) is limited to “federal grants administered by the

11 Department of Justice or the Department of Homeland Security” that contain grant-eligibility

12 terms that require applicants to “certify their compliance with federal law, including 8 U.S.C.

13 § 1373, as a condition for receiving an award.” AG Mem. at 1, 2. The Memorandum further

14 clarifies that “jurisdiction[s] that fail[] to certify compliance with section 1373 will be ineligible

15 to receive [an] award[]” pursuant to the grant-eligibility provision, and that defendants may only

16 impose conditions on federal grant programming where “existing statutory or constitutional

17 authority” allows. Id. at 2.

18

Accordingly, because the AG Memorandum constitutes new authority, and because that

19 authority contravenes many of the bases underlying the Court’s conclusions, defendants

20 respectfully request that the Court allow defendants leave to seek reconsideration of the Court’s

21 holding regarding the justiciability of plaintiff’s claims and the Court’s entry of preliminary

22 injunctive relief in plaintiff’s favor.1

23

1 Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, a motion to alter or

24

amend a judgment must be filed within 28 days of the entry of judgment. A motion for reconsideration may be treated as a motion filed pursuant to Rule 59(e), and the filing of a motion for

25 reconsideration tolls the period to appeal the entry of a preliminary injunction. See, e.g., United

States v. Nutri-cology, 982 F.2d 394, 396-97 (9th Cir. 1992); Sierra On-Line, Inc. v. Phoenix

26 Software, Inc., 739 F.2d 1415, 1418-19 (9th Cir. 1984). Relevant authority in this Circuit,

however, is unclear as to whether the filing of a motion for leave to file a motion for reconsider-
27 ation is itself sufficient to toll the appeal period, or whether the appeal period is tolled only upon

28

the granting of a motion for leave. Cf. Pena v. Meeker, 298 F. App’x 562, 563 (9th Cir. 2008) 2

Defs’ Mot. for Leave: Reconsid.

No. 5:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 3 of 8

1

2

ISSUE PRESENTED

3

Whether the Court should provide defendants leave to file a motion for reconsideration or,

4 in the alternative, clarification of the Court’s Order of April 25, 2017, granting plaintiff’s motion

5 for preliminary injunctive relief.

6

BACKGROUND

7

On March 8, 2017, the City and County of San Francisco (“City” or “San Francisco”)

8 moved for a preliminary injunction to prevent the implementation of Section 9(a) of the

9 Executive Order (Doc. 21). Section 9(a) provides, in relevant part, that the Attorney General and

10 the Secretary of Homeland Security (“Secretary”), “in their discretion and to the extent consistent

11 with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 . . . are

12 not eligible to receive Federal grants[.]” Exec. Order 13,768, § 9(a). San Francisco had urged an

13 expansive interpretation of the term “Federal grants,” contending that the Order “appear[ed] to

14 direct the withdrawal of all federal funding” and to “condition eligibility for all federal funds on

15 compliance with Section 1373” (Doc. 21 at 2, 11).

16

At oral argument on the motion for preliminary injunction, defendants’ counsel articulated

17 the federal government’s position that, as properly interpreted, the grant-eligibility provision of

18 Section 9(a) applies only to federal grants administered by the Department of Justice (“DOJ”) or

19 the Department of Homeland Security (“DHS”) with grant-eligibility terms that expressly

20 condition the award of funding on the grantee’s certification of compliance with 8 U.S.C. § 1373.

21 See Tr. of Oral Arg. at 24:4-6; see also Order of Apr. 25, 2017 at 13 (summarizing the govern-

22 ment’s position). The government further stated that only three grant programs, all of which are

23 administered by DOJ, currently contain terms with the explicit Section 1373 compliance

24 conditions that would bring them within the scope of Section 9(a). See, e.g., Tr. of Oral Arg. at

25

(finding that the filing of a motion for leave does not toll the appeals period where that motion is

26 filed beyond the deadline provided in Rule 59). Accordingly, to clarify the matter and to ensure

the tolling of the appeal period, defendants respectfully request that the Court decide the instant
27 Motion for Leave within 28 days of the entry of the preliminary injunction – that is, by May 23,

28 2017.

3

Defs’ Mot. for Leave: Reconsid.

No. 5:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 4 of 8

1 35:2-9. The government acknowledged, however, that “[g]oing forward . . . DOJ and, potentially,

2 DHS,” where authorized to do so, may adopt grant terms that include similar conditions, and that

3 those conditions “will be known to the [grantee]” in advance of the grantee’s decision to

4 participate in the grant program. Id. at 25:14-16.

5

At oral argument and in its Order, the Court raised concerns regarding purported

6 inconsistencies between the government’s proffered interpretation of the grant-eligibility

7 provision and public statements made by government officials concerning domestic immigration

8 enforcement priorities. See, e.g., Order of Apr. 25, 2017 at 3; Tr. of Oral Arg. at 36:4-7.

9 Additionally, plaintiff’s counsel and the Court raised questions at oral argument as to whether

10 government counsel was capable of binding the Department of Justice or the Executive Branch in

11 light of the past statements made by government officials. See, e.g., Tr. of Oral Arg. at 46:1-3

12 (Counsel for plaintiff County of Santa Clara: “I didn’t hear [defendants’ counsel say] that

13 Attorney General Sessions had signed off to the new interpretation.”); id. at 11:10-12 (“[W]hat a

14 Justice Department lawyer down the food chain says … without any binding effect, is not

15 something [the Court] should consider . . . .”).

16

On April 25, 2017, the Court granted San Francisco’s motion and enjoined the defendants

17 (other than the President) “from enforcing Section 9(a) of the Executive Order against jurisdic-

18 tions they deem as sanctuary jurisdictions.” Order of Apr. 25, 2017 at 49. The Court made clear,

19 however, that defendants may “use lawful means to enforce existing conditions of federal grants

20 or 8 U.S.C. 1373.” Id. The Court determined that injunctive relief was appropriate because, like

21 the plaintiff, it interpreted the grant-eligibility provision of Section 9(a) as referring to “all federal

22 grants, not merely the three mentioned at the hearing.” Id. at 3. In reaching that interpretation,

23 the Court relied in part on public comments by the President, the White House Press Secretary,

24 and the Attorney General to conclude that “Section 9(a) is not reasonably susceptible to the new,

25 narrow interpretation offered at the hearing.” Id. Based on its broad interpretation of Section

26 9(a), the Court held that the City’s claims were justiciable and that the provisions of Section 9(a)

27 violated a variety constitutional doctrines. See generally id. at 49.

28

4

Defs’ Mot. for Leave: Reconsid.

No. 5:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 5 of 8

1

ARGUMENT

2

Civil Local Rule 7-9(b) provides that a party filing a motion for leave to file a motion for

3 reconsideration must “show reasonable diligence in bringing the motion,” and that the motion for

4 leave must be based on “a material difference in fact or law . . . from that which was presented to

5 the Court before the entry of the interlocutory order for which reconsideration is sought.” A

6 motion for leave may also be warranted due to the “emergence of new material facts or a change

7 of law after the time of such order.” Id.

8

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

9 interpretation of the scope of the grant-eligibility provision of Section 9(a). Section 9(a) of the

10 Executive Order directs only two officials, the Attorney General and the Secretary of Homeland

11 Security, to implement its provisions, and the Attorney General has now clarified that he does not

12 interpret the challenged portion of the Executive Order as applying to grant programs adminis-

13 tered by other agencies. Moreover, by longstanding tradition and practice, the Attorney General’s

14 legal opinions are treated as authoritative by the heads of executive agencies. See, e.g., Tenaska

15 Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss,

16 Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52

17 Admin. L. Rev. 1303, 1319-20 (2000). The Attorney General has a statutory duty to advise

18 executive department heads on “questions of law,” 28 U.S.C. § 512, and furnishes formal legal

19 opinions to executive agencies, 28 C.F.R. § 0.5(c). And although the Secretary of Homeland

20 Security principally administers the immigration laws, the Immigration and Nationality Act

21 provides that “the determination and ruling by the Attorney General with respect to all questions

22 of law shall be controlling.” 8 U.S.C. § 1103(c)(1). The AG Memorandum thus conclusively

23 establishes that Section 9(a) is limited to grant programs administered by DOJ or DHS.

24 Moreover, the AG Memorandum sets forth clear and consistent guidance for the applicable

25 components of DOJ as to the parameters of the grant-eligibility provision.

26

27

28

5

Defs’ Mot. for Leave: Reconsid.

No. 5:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 6 of 8

1

The AG Memorandum specifies that – as defendants’ counsel represented at oral

2 argument – the grant-eligibility provision is limited to “federal grants administered by [DOJ] or

3 [DHS],” and to grants that have eligibility terms requiring applicants to “certify their compliance

4 with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award.” AG Mem. at

5 1-2. The Memorandum also makes clear that “jurisdiction[s] that fail[] to certify compliance with

6 [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the grant-eligibility

7 provision. Id. at 2. The AG Memorandum further confirms that the Executive Order does not

8 “purport to expand the existing statutory or constitutional authority of the Attorney General and

9 the Secretary of Homeland Security in any respect,” and that DOJ and DHS may impose grant

10 conditions only pursuant to “existing statutory or constitutional authority.” Id.

11

In its Order of April 25, 2017, the Court reached an interpretation of Section 9(a) that

12 contrasts starkly with the position set forth in the AG Memorandum. Specifically, the Court held

13 that the grant-eligibility provision of Section 9(a) “attempts to reach all federal grants[.]” Order

14 of Apr. 25, 2017 at 2-3 (emphasis added). In support of that interpretation, the Court relied, in

15 part, on public comments made by administration officials, including the Attorney General,

16 relating to domestic immigration enforcement priorities. Id. at 3, 23-24. The Court held that

17 those public statements “belie the Government’s argument . . . that the Order does not change the

18 law.” Id. at 24-25. Based on its broad interpretation of the grant-eligibility provision, the Court

19 held that plaintiff had established a likelihood it would be subject to enforcement under the

20 provision, and that the plaintiff would be successful on the merits of its constitutional challenges.

21 Id. at 49.

22

The AG Memorandum contradicts the Court’s interpretation of the grant-eligibility

23 provision and thereby undermines much of the logic upon which the Court’s analysis is based.

24 Although the position articulated in the AG Memorandum is consistent with the position taken by

25 government counsel at oral argument, the Memorandum provides conclusive, binding guidance

26 that explicitly sets forth the position of the government. Thus, the AG Memorandum constitutes

27 new authority for the Court to consider in revisiting its conclusions.

28

6

Defs’ Mot. for Leave: Reconsid.

No. 5:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 7 of 8

1

As explained in more detail in the attached Motion for Reconsideration, by clarifying that

2 the grant-eligibility provision of Section 9(a) is limited to grant programs administered by DHS

3 or DOJ, and that the provision does not retroactively condition the receipt of awards under those

4 programs on compliance with federal civil detainer requests, the AG Memorandum provides

5 grounds for the Court to reconsider its determination that plaintiff is a likely subject of enforce-

6 ment under the Executive Order. Moreover, by formally specifying that the grant-eligibility

7 provision does not apply to all federal grant programs, the AG Memorandum dramatically lessens

8 the potential harm that plaintiff purports to face.

9

The AG Memorandum also lessens plaintiff’s likelihood of success on the constitutional

10 claims it asserts. By confirming that the Executive may impose conditions only pursuant to

11 “existing statutory or constitutional authority,” see AG Mem. at 2, the Memorandum alleviates

12 the Court’s concern that the Executive Order violates separation of powers principles by

13 purporting to provide the President the unilateral authority to impose conditions on federal grants.

14 Order of Apr. 25, 2017 at 36. The AG Memorandum also addresses the Court’s Spending Clause

15 concerns by specifying the programs to which the grant-eligibility provision applies, by clarifying

16 that the provision does not apply retroactively, and by confirming that the provision is not so

17 broad as to be unconstitutionally coercive. Id. at 37-39. The AG Memorandum resolves the

18 Court’s Tenth Amendment concerns by making clear that the grant-eligibility provision does not

19 attempt to require retroactively that local jurisdictions comply with federal civil detainer requests.

20 Id. at 40-41. It also addresses the Court’s Fifth Amendment vagueness and due process concerns

21 by specifying the particular grant programs that fall within the scope of the provision, by defining

22 certain terms invoked in the Executive Order, and by confirming that the grant-eligibility

23 provision does not create an automatic defunding mechanism. Id. at 41-44.

24

In all, the AG Memorandum provides a basis for this Court to reconsider its conclusions

25 regarding the justiciability of plaintiff’s claims and its holding regarding plaintiff’s entitlement to

26 preliminary injunctive relief. Accordingly, defendants respectfully seek leave to file the attached

27

28

7

Defs’ Mot. for Leave: Reconsid.

No. 5:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102 Filed 05/22/17 Page 8 of 8

1 Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order of April 25,

2 2017.

3

CONCLUSION

4

For the foregoing reasons, defendants respectfully request that the Court grant this Motion

5 for Leave to File the attached Motion for Reconsideration or, in the Alternative, Clarification of

6 the Court’s Order of April 25, 2017.

7 Dated: May 22, 2017

8

Respectfully submitted,

9

CHAD A. READLER

10

Acting Assistant Attorney General

11

BRIAN STRETCH

United States Attorney
12

13

JOHN R. TYLER Assistant Director

14

STEPHEN J. BUCKINGHAM

15

Special Counsel

16

/s/ W. Scott Simpson

17
W. SCOTT SIMPSON (Va. Bar #27487)

18

Senior Trial Counsel

19

Attorneys, Department of Justice

20

Civil Division, Room 7210 Federal Programs Branch

21

Post Office Box 883

Washington, D.C. 20044

22

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

23

E-mail: scott.simpson@usdoj.gov

24
25
26
27
28 Defs’ Mot. for Leave: Reconsid.
No. 5:17-cv-00485-WHO

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States 8

Case 3:17-cv-00485-WHO Document 102-1 Filed 05/22/17 Page 1 of 3
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Defendants’ Motion for Leave to File a Motion for
Reconsideration of the Court’s Order of April 25, 2017
Attachment 1
Memorandum from the Attorney General for All Department Grant-Making Components (May 22, 2017)

Case 3:17-cv-00485-WHO Document 102-1 Filed 05/22/17 Page 2 of 3
®ffic.e of fq.e J\ftnrn.eu ®.en.era!
�as£ringtnn, �.QL 20530 May 22, 2017

MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS

FROM: SUBJECT:

THE ATTORNEY GENERA
I
,L Implementation of Executive er 13768,
"Enhancing Public Safety in tU Interior of the United States"

Federal law provides a process for foreign citizens to lawfully enter the country. Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role of federal agencies, including the Department of Justice, to enforce our immigration laws, prosecute violations, and secure our borders.
The President has established immigration enforcement as a priority for this Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," on January 25, 2017. The Executive Order makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 1373 provides in part that state and local jurisdictions "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officers] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding. Section 9(a) expressly requires enforcement "to the extent consistent with law," and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or

Case 3:17-cv-00485-WHO Document 102-1 Filed 05/22/17 Page 3 of 3

Memorandum for All Department Grant-Making Components Subject: Implementation of Executive Order 13768,
"Enhancing Public Safety in the Interior of the United States"

Page2

statutory limitation. Nor does the Executive Order purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect. Indeed, apart from the Executive Order, the Department of Justice and the Department of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the Department of Justice will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to receive such awards. This certification requirement will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition. All grantees will receive notice of their obligation to comply with section 1373. The Department will administer this certification requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow, nothing in the Executive Order limits the Department's ability to point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department's law enforcement priorities. Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 1 of 40
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Defendants’ Motion for Leave to File a Motion for
Reconsideration of the Court’s Order of April 25, 2017
Attachment 2
Defendants’ Notice of Motion and Motion for Reconsideration or, in the Alternative, Clarification
of the Court’s Order of April 25, 2017; Memorandum of Points and Authorities

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 2 of 40

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director
STEPHEN J. BUCKINGHAM (Md. Bar)
5 Special Counsel

6

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel

7 Department of Justice, Room 7210
Civil Division, Federal Programs Branch

8 Post Office Box 883
Washington, D.C. 20044
9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@usdoj.gov

11 COUNSEL FOR DEFENDANTS
DONALD J. TRUMP, President of the
12 United States; UNITED STATES OF
AMERICA; JOHN F. KELLY, Secretary of
13 Homeland Security; JEFFERSON B.

14

SESSIONS, III, Attorney General of the United States

15

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
CITY AND COUNTY OF SAN
20 FRANCISCO,

No. 3:17-cv-00485-WHO

21

Plaintiff,

22

v.

23 DONALD J. TRUMP, et al.,

24

Defendants.

25

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF THE COURT’S ORDER OF APRIL 25, 2017; MEMORANDUM OF POINTS AND AUTHORITIES

26

27

28

Defs’ Motion for Reconsideration No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 3 of 40

1

2

TABLE OF CONTENTS

3
NOTICE OF MOTION ................................................................................................................... 1
4

5 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

6
INTRODUCTION .......................................................................................................................... 1
7

8 ISSUES PRESENTED.................................................................................................................... 2

9
BACKGROUND ............................................................................................................................ 3
10

11 ARGUMENT .................................................................................................................................. 7

12

I. The AG Memorandum Provides a Basis for the Court

to Reconsider Its Justiciability Determination ........................................................ 8

13

II. The AG Memorandum Provides a Basis for the Court to Reconsider

14

Its Determination that the Plaintiff is Likely to Succeed

on the Merits of Its Claims.................................................................................... 12

15

A. The AG Memorandum Alleviates the Court’s Separation

16

of Powers Concerns .................................................................................. 13

17

B. The AG Memorandum Alleviates the Court’s Spending

Clause Concerns........................................................................................ 14

18

C. The AG Memorandum Alleviates the Court’s Tenth

19

Amendment Concerns ............................................................................... 16

20

D. The AG Memorandum Alleviates the Court’s Vagueness Concerns........ 18

21

E. The AG Memorandum Alleviates the Court’s Due Process

Clause Concerns........................................................................................ 19

22

III. The Injunction Should Not Restrict Defendants’ Independent

23

Authority to Impose Conditions on Grant Programming...................................... 20

24 CONCLUSION ............................................................................................................................. 21

25

26

27

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1

TABLE OF AUTHORITIES

2

3 CASES

4

Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ............................................................................................................... 4, 9, 14, 18

5 De La Torre v. CashCall, Inc., 56 F. Supp. 3d 1105 (N.D. Cal. 2014) ........................................... 7

6 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989).................................................. 6, 13

7 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ..................................................................... 15

8 Gaynard v. City of Rockford, 408 U.S. 104 (1972) ....................................................................... 18

9 Morton v. Ruiz, 415 U.S. 199 (1974) ............................................................................................... 6

10 Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ....................................................... 15

11 Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) ................... 7

12 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 11, 17

13 Thornton v. City of Helens, 425 F.3d 1158 (9th Cir. 2005) ........................................................... 19

14

15 STATUTES

16 8 U.S.C. § 1103(c)(1) ....................................................................................................................... 5

17 8 U.S.C. § 1373 ....................................................................................................................... passim

18 42 U.S.C. § 3712(a) ......................................................................................................................... 7

19 42 U.S.C. § 3712(a)(6) ..................................................................................................................... 6

20 42 U.S.C. § 3752(a)(5)(D) ............................................................................................................... 6

21
REGULATIONS
22
2 C.F.R. § 200.207(a)....................................................................................................................... 7
23
2 C.F.R. § 2800.101 ......................................................................................................................... 7
24
28 C.F.R. § 0.5(c)............................................................................................................................. 5
25

26 EXECUTIVE ORDERS

27 Exec. Order 13,536, 76 Fed. Reg. 3,821 (Jan. 18, 2011) ............................................................... 10

28

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1 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim

2 Exec. Order No. 13,768, § 9, 82 Fed. Reg. 8,799 (Jan. 30, 2017) .......................................... passim

3 Exec. Order No. 13,768, § 10(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017)............................................. 9

4
OTHER AUTHORITIES
5
2015 COPS Hiring Program Fact Sheet, DOJ Community Oriented Policing Services .............. 13
6
2016 COPS Hiring Program Fact Sheet, DOJ Community Oriented Policing Services .............. 13
7
Ltr. from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon.
8 John A. Culberson, Chairman for the Subcomm. on Commerce, Justice,
Sci. & Related Agencies (Jul. 7, 2016) ............................................................................................ 7
9
Mem. from DHS Sec’y Jeh Johnson to Acting Dir. U.S. Immigration &
10 Customs Enforcement Thomas Winkowski, et al. (Nov. 20, 2014) ............................................... 9

11 Mem. from the Attorney General for All Department Grant-Making
Components (May 22, 2017) .................................................................................................. passim
12
Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from
13 the Office of Legal Counsel, 52 Admin. L. Rev. 1303 (2000) ......................................................... 5

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OR, IN THE

2

ALTERNATIVE, FOR CLARIFICATION

3

PLEASE TAKE NOTICE that defendants hereby move for reconsideration or, in the

4 alternative, for clarification of the Court’s Order of April 25, 2017, granting plaintiff’s motion for

5 preliminary injunction (Doc. 82). This motion is based on the following Memorandum of Points

6 and Authorities, the evidence and records on file in this action, and any other written or oral

7 evidence or argument that may be presented at or before the time this motion is heard.

8

MEMORANDUM OF POINTS AND AUTHORITIES

9

INTRODUCTION

10

On May 22, 2017, the Attorney General issued a Memorandum (“AG Memorandum”)

11 concerning the implementation of Executive Order 13,768. See AG Mem. at 1 (Attachment 1

12 hereto); Exec. Order No. 13,768 (“Executive Order”), 82 Fed. Reg. 8,799-8,803 (Jan. 30, 2017).

13 The AG Memorandum sets forth the Attorney General’s conclusive interpretation of the scope of

14 the grant-eligibility provision in Section 9(a) of the Executive Order. The Memorandum provides

15 (1) that the grant-eligibility provision applies “solely to federal grants administered by the

16 Department of Justice or the Department of Homeland Security [“DHS”], and not to other sources

17 of federal funding[,]” (2) that the Department of Justice (“DOJ”) will require jurisdictions

18 applying for certain DOJ-administered grants “to certify their compliance with federal law,

19 including 8 U.S.C. § 1373,” and (3) that only “jurisdiction[s] that fail[] to certify compliance with

20 section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2. The AG Memorandum

21 provides the decisive interpretation of the administration, and it reaffirms the representations

22 made by government counsel at oral argument that the grant-eligibility provision applies only to

23 federal grant programs administered by DOJ or DHS that contain terms that expressly obligate a

24 grant applicant or recipient to certify of compliance with 8 U.S.C. § 1373. See Tr. of Oral Arg. at

25 24:4-6, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017).

26

The authoritative position set forth in the AG Memorandum squarely contradicts the

27 Court’s determination, which was based in part on non-binding press statements and public

28 speeches, that the grant-eligibility provision “attempts to reach all federal grants[.]” Order of

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1 Apr. 25, 2017 at 2-3 (Doc. 82). That finding, in turn, served as the foundation for the Court’s

2 analysis of the justiciability of plaintiff’s claims and the Court’s conclusions regarding the

3 constitutional infirmity of the Executive Order. However, because the Attorney General has now

4 issued binding guidance that undermines many of the factual bases supporting the Court’s

5 opinion, including the Court’s interpretation of press statements and public speeches, defendants

6 respectfully request that the Court reconsider its holding in light of the recently-issued

7 Memorandum.

8

Should the Court determine that an injunction remains appropriate despite the issuance of

9 the AG Memorandum, defendants respectfully seek clarification regarding the scope of the

10 injunction. The Court’s Order provides that defendants may “use lawful means to enforce

11 existing conditions of federal grants or 8 U.S.C. 1373.” Id. at 49 (emphasis added). Defendants

12 do not interpret the Court’s Order as prohibiting defendants from imposing additional conditions

13 on grant programming for future federal grant awards pursuant to the direction contained in

14 Section 9(a), where defendants are legally authorized to do so under authority that exists

15 independent of the Executive Order. Nevertheless, out of an abundance of caution, in the event

16 the Court determines to maintain the injunction currently in place in this matter, defendants

17 respectfully seek confirmation that DOJ and DHS are not enjoined from imposing conditions on

18 grant programs administered by those agencies where such conditions are permissible under

19 independent legal authority.

20

ISSUES PRESENTED

21

1. Whether the Court should reconsider its entry of injunctive relief in light of recently

22 issued authority concerning the scope of the Executive Order.

23

2. Whether, in the event the Court determines that injunctive relief remains appropriate,

24 the Court should nevertheless clarify the scope of its Order to specify that DOJ and DHS are not

25 enjoined from including conditions on DOJ and DHS-administered grant programs pursuant to

26 legal authority that exists independent of the Executive Order.

27

28

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1

BACKGROUND

2

On March 8, 2017, the City and County of San Francisco (“City” or “San Francisco”)

3 moved for a preliminary injunction to prevent the implementation of Section 9(a) of the

4 Executive Order (Doc. 21). Section 9(a) provides, in relevant part, that the Attorney General and

5 the Secretary of Homeland Security (“Secretary”), “in their discretion and to the extent consistent

6 with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 . . . are

7 not eligible to receive Federal grants[.]” Exec. Order 13,768, § 9(a). Despite the fact that the

8 grant-eligibility provision of Section 9(a) is directed solely to the Attorney General and the

9 Secretary, San Francisco had urged an expansive reading of that provision, arguing that it applied

10 to the entirety of the Executive Branch. Specifically, San Francisco contended that the Order

11 purported to “condition eligibility for all federal funds on compliance with Section 1373,” not just

12 federal grants administered by DOJ or DHS (Doc. 21 at 11).

13

At oral argument on the motion for preliminary injunction, the government stated that,

14 because the grant-eligibility provision of Section 9(a) directs action only by the Department of

15 Justice or the Department of Homeland Security, that provision only applied to grants adminis-

16 tered by DOJ or DHS. The government further stated that, consistent with governing authority

17 and past practice, DHS or DOJ would only take adverse action against a grant recipient for failure

18 to comply with Section 1373 where the terms of the grant program expressly required such

19 compliance. See Tr. of Oral Arg. at 24:4-6; see also Order of Apr. 25, 2017 at 13 (summarizing

20 the government’s position). The government further stated that only three grant programs, all of

21 which are administered by DOJ, currently identify Section 1373 as an applicable federal law with

22 which grantees are required to comply. See, e.g., Tr. of Oral Arg. at 35:2-9. The government

23 acknowledged, however, that “[g]oing forward . . . DOJ and, potentially, DHS” may choose to

24 include similar conditions in their grant-eligibility terms, where authorized to do so, and that, in

25 all cases, those conditions “will be known to the [grantee]” in advance of the grantee’s decision to

26 participate in the grant program. Id. at 25:14-16.

27

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1

On April 25, 2017, the Court granted San Francisco’s motion and enjoined the defendants

2 (other than the President) “from enforcing Section 9(a) of the Executive Order against jurisdic-

3 tions they deem as sanctuary jurisdictions.” Order of Apr. 25, 2017 at 49. The Court made clear,

4 however, that defendants may “use lawful means to enforce existing conditions of federal grants

5 or 8 U.S.C. 1373.” Id.1 The Court found injunctive relief appropriate because, like the plaintiff,

6 it interpreted the grant-eligibility provision of Section 9(a) as referring to “all federal grants[.]”

7 Id. at 3 (emphasis added). In reaching that interpretation, the Court relied heavily on public

8 comments by the President, the White House Press Secretary, and the Attorney General to

9 conclude that “Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered

10 at the hearing.” Id. Based on its broad interpretation of Section 9(a), the Court held that the

11 City’s claims were justiciable and that the provisions of Section 9(a) violated a variety of

12 constitutional doctrines. See generally id. at 49.

13

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

14 interpretation of the scope of the grant-eligibility provision of Section 9(a). The Memorandum

15 specifies that the Executive Order does not “purport to expand the existing statutory or constitu-

16 tional authority of the Attorney General and the Secretary of Homeland Security in any respect,”

17 but rather instructs those officials to take certain action, “to the extent consistent with the law.”

18 AG Mem. at 2; see Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C.

19 Cir. 2002) (noting that the President is merely wielding his “supervisory authority over the

20 Executive Branch” where he “directs his subordinates” to take certain action “but only ‘[t]o the

21 extent permitted by law’”). The AG Memorandum further clarifies that the grant-eligibility

22 provision is limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants

23 requiring the applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as

24

25

1As mentioned, the Court has only enjoined defendants (other than the President) from

“enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary

26 jurisdictions.” Order of Apr. 25, 2017 at 49. It has not limited defendants’ ability to use “lawful

means [of] enforc[ing]” federal law, id., and defendants do not understand the Court’s Order as
27 precluding their ability to utilize legal authority independent of the Executive Order to initiate

28

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1 a condition for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify

2 compliance with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the

3 grant-eligibility provision. Id. In other words, the provision applies only in instances in which an

4 applicant or grant recipient has had the choice either to certify compliance with 8 U.S.C. § 1373

5 as an express condition of eligibility to participate in a certain grant program, or to refuse to

6 certify compliance and thereby render itself ineligible to participate in the grant program. The

7 AG Memorandum also makes clear that, with respect to Section 1373 compliance conditions,

8 DOJ and DHS may impose such conditions only pursuant to the exercise of “existing statutory or

9 constitutional authority,” and only where “grantees will receive notice of their obligation to

10 comply with section 1373.” AG Mem. at 2.

11

The interpretation set forth in the AG Memorandum is conclusive here. Section 9(a) of

12 the Executive Order directs only two officials, the Attorney General and the Secretary of

13 Homeland Security, to implement its provisions, and the Attorney General has now clarified that

14 he does not interpret the challenged portion of the Executive Order as applying to grant programs

15 administered by agencies other than DOJ and DHS. Moreover, by longstanding tradition and

16 practice, the Attorney General’s legal opinions are treated as authoritative by the heads of

17 executive agencies. See, e.g., Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl.

18 434, 439 (1995); Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from

19 the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000). The Attorney General has

20 a statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and

21 furnishes formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). And although the

22 Secretary of Homeland Security principally administers the immigration laws, the Immigration

23 and Nationality Act provides that a “determination and ruling by the Attorney General with

24 respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(c)(1). The AG Memoran-

25 dum thus conclusively establishes that section 9(a) is limited to grant programs administered by

26 DOJ or DHS. Moreover, the AG Memorandum sets forth clear and consistent guidance for the

27 applicable components of DOJ as to the parameters of the grant-eligibility provision.

28

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1

In addition to setting forth the authoritative interpretation of the grant-eligibility provision

2 of section 9(a), the Attorney General also recognized that, “[s]eparate and apart from the

3 Executive Order, statutes may authorize the Department to tailor grants or to impose additional

4 conditions on grantees to advance the Department’s law enforcement priorities.” AG Mem. at 2.

5 Pursuant to those authorities, administrations have historically focused federal resources on

6 addressing concerns of high priority, such as homeland security, violent crime, domestic violence,

7 or immigration. As this Court recognized in its Order, “Congress can delegate some discretion to

8 the President to decide how to spend appropriated funds” so long as any such “delegation and

9 discretion is cabined” by relevant constitutional boundaries. See Order of Apr. 25, 2017 at 36;

10 see Tr. of Oral Arg. at 34:4-8; see also DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C.

11 Cir. 1989) (upholding conditions on spending imposed by the Executive where the underlying

12 statute unambiguously authorized the Executive to set certain “terms and conditions as he may

13 determine”).

14

Many of the spending statutes governing DOJ or DHS, including those that authorize

15 particular grant programs or that otherwise govern the spending powers of the agency, allow for

16 those agencies to impose certain conditions on certain federal grant programs they administer.

17 See, e.g., 42 U.S.C. § 3712(a)(6) (authorizing certain DOJ officials to place “special conditions”

18 on particular grants); Morton v. Ruiz, 415 U.S. 199, 230 (1974) (finding that, in certain instances,

19 such as where a congressional appropriation is insufficient to carry out its purpose, the agency

20 administering the program is deemed authorized “to create reasonable classifications and

21 eligibility requirements in order to allocate the limited funds available”). For example, the statute

22 authorizing the Edward Byrne Memorial Justice Assistance Grant program (“JAG”), which is

23 administered by DOJ’s Office of Justice Programs (“OJP”), requires grant applicants to certify to

24 the Attorney General that they “comply with all provisions of this part and all other applicable

25 Federal laws.” 42 U.S.C. § 3752(a)(5)(D). That statutory provision allows the Attorney General

26 the discretion to determine whether a particular federal law is “applicable” to the receipt of a JAG

27 award. Additionally, a provision of OJP’s organic statute authorizes the head of OJP to “exercise

28

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1 such other powers and functions as may be vested in [him or her] pursuant to this chapter or by

2 delegation of the Attorney General, including placing special conditions on all grants, and

3 determining priority purposes for formula grants.” Id. § 3712(a) (emphasis added).2 Pursuant to

4 those statutory authorities, since 2016, DOJ has identified Section 1373 as federal law applicable

5 to the JAG program. See generally Order of Apr. 25, 2017 at 6 (citing Ltr. from Peter J. Kadzik,

6 Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon. John A. Culberson, Chairman for the Subcomm.

7 on Commerce, Justice, Sci. & Related Agencies (Jul. 7, 2016)); see also Declaration of Ralph

8 Martin ¶ 17 (Attachment 2 hereto). Thus, consistent with the Court’s Order, the AG

9 Memorandum acknowledges, as defendants’ counsel did at oral argument, that going forward,

10 where legally authorized, defendants “may seek to tailor grants to promote a lawful system of

11 immigration.” AG Mem. at 2.

12

ARGUMENT

13

“A district court has inherent jurisdiction to modify, alter, or revoke a prior order.” De La

14 Torre v. CashCall, Inc., 56 F. Supp. 3d 1105, 1107 (N.D. Cal. 2014). The Ninth Circuit has held

15 that “[r]econsideration is appropriate if the district court (1) is presented with newly discovered

16 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

17 an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS,

18 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Under this Court’s Civil Local Rule 7-9(b), a motion for

19 reconsideration may be proper where, for example, “a material difference in fact or law exists

20 from that which was presented to the Court before entry of the interlocutory order for which

21 reconsideration is sought.” The AG Memorandum constitutes a material difference in controlling

22 authority. As explained in more detail below, that Memorandum eliminates many of the

23 conclusions that served as the foundation for the Court’s decision to grant plaintiff’s motion for

24

25

26

2 Similarly, DOJ regulations provide for the imposition of “additional specific award

conditions” under certain circumstances, such as where “an applicant or recipient has a history of
27 failure to comply with the general or specific terms and conditions of a Federal award.” See 2

28

C.F.R. § 2800.101 (adopting, inter alia, 2 C.F.R. § 200.207(a)). 7

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1 preliminary injunction. Accordingly, defendants respectfully request that the Court reconsider its

2 decision in light of the guidance contained in the AG Memorandum.

3 I. 4

The AG Memorandum Provides a Basis for the Court to Reconsider Its Justiciability Determination

5

The AG Memorandum expressly contradicts many of the conclusions underlying the

6 Court’s decision regarding the justiciability of San Francisco’s claims. Contrary to those

7 conclusions, the Memorandum makes clear that the grant-eligibility provision in Section 9(a) of

8 the Executive Order applies only to grant programs administered by DOJ or DHS and, with

9 respect to DOJ grants, only to those programs where explicit terms condition eligibility on

10 certification of compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Because the AG

11 Memorandum’s clarification of the scope of the grant-eligibility provision conflicts with several

12 bases essential to the Court’s justiciability determination, the Court should reconsider that

13 determination in light of the position set forth in the Memorandum, which are binding on the

14 relevant Executive Branch officials.

15

In determining that the City had established the justiciability of its claims, the Court first

16 found that the grant-eligibility provision of Section 9(a) improperly attempted to effectuate a

17 change in the law because that provision “purport[ed] to delegate to the Attorney General and the

18 Secretary the authority to place a new condition on federal grants,” in contravention of the

19 Constitution, and because the Order did not explicitly limit its scope to grants administered by

20 DHS or DOJ. Order of Apr. 25, 2017 at 14-15. The Court reasoned that a contrary reading of the

21 Executive Order – one that simply required the Attorney General and the Secretary to use their

22 existing statutory authority to enforce the President’s policies – rendered the Order “legally

23 meaningless” and was thus “clearly inconsistent with the Order’s broad intent.” Id. at 15.

24

The AG Memorandum contradicts those determinations. As the Memorandum makes

25 clear, for example, the purpose of the Executive Order was to “establish[] immigration enforce-

26 ment as a priority for this Administration,” not to direct the Attorney General or the Secretary to

27 act ultra vires. See AG Mem. at 1. Far from being “legally meaningless,” the Executive Order

28

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1 represents a dramatic departure from the prior administration’s policy of non-enforcement of

2 certain immigration programs. Compare, e.g., Mem. from DHS Sec’y Jeh Johnson to Acting Dir.

3 U.S. Immigration & Customs Enforcement Thomas Winkowski, et al. (Nov. 20, 2014)

4 (explaining that the “Secure Communities” program will be discontinued), available at

5 https://www.dhs.gov/ sites/ default/ files/ publications/14_1120_memo_secure_communities.pdf,

6 with Exec. Order 13,768, § 10(a) (“The Secretary shall immediately take all appropriate action to

7 terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the

8 Secretary on November 20, 2014, and to reinstitute the immigration program known as “Secure

9 Communities.”). The Executive Order thus “ensure[s] that our Nation’s immigration laws are

10 faithfully executed,” see Exec. Order 13,768 at 1, and directs the appropriate executive officials

11 to prioritize, to the fullest extent of the law, means for achieving that priority. Those means may

12 include, for example, more aggressive enforcement of existing grant conditions, or, as the AG

13 Memorandum suggests, tailoring future grant awards in a manner that promotes the

14 administration’s law enforcement priorities. See AG Mem. at 2.

15

What is more, as the AG Memorandum recognizes, the Executive Order itself provides

16 that the Attorney General and the Secretary are only to enforce the Order “to the extent permitted

17 by law.” Exec. Order 13,768, § 9(a). In this respect, the Order is analogous to orders issued by

18 past administrations that set forth specific executive priorities and directed the manner in which

19 federal agencies might implement those priorities, “to the extent permitted by law.” In Building

20 & Construction Trades Department, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), for

21 example, the President had issued an executive order providing that, “[t]o the extent permitted by

22 law,” no federal agency or entity receiving federal assistance for a construction project could

23 require contractors to enter into a project labor agreement or prohibit them from doing so. Id. at

24 30. Plaintiffs challenged the facial validity of the order. The district court enjoined its

25 enforcement, finding that it was beyond the President’s authority and violated the National Labor

26 Relations Act. Id. at 31. The D.C. Circuit reversed, holding that, in the “faithful execution of the

27 laws,” the President may “provide guidance and supervision to his subordinates” and may instruct

28

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1 his subordinates to follow that guidance only “to the extent permitted by law.” Id. at 32-33.

2 “Thus,” the court observed, “if an executive agency … may lawfully implement the Executive

3 Order, then it must do so; if the agency is prohibited, by statute or other law, from implementing

4 the Executive Order, then the Executive Order itself instructs the agency to follow the law.” Id.

5 at 33; see Exec. Order 13,536, 76 Fed. Reg. 3,821-3,823 (Jan. 18, 2011) (reaffirming as a policy

6 priority certain principles of contemporary regulatory review and directing agencies “to the extent

7 permitted by law” to take steps to promote those principles).

8

Consistent with this framework, the AG Memorandum makes clear that the grant-

9 eligibility provision of Section 9(a) “applie[s] solely to federal grants administered by [DOJ] or

10 [DHS], and not to other sources of federal funding.” See AG Mem. at 1 (emphasis added). It

11 further clarifies that, where DOJ imposes obligations on a grant program, such as the requirement

12 that an applicant certify compliance with 8 U.S.C. § 1373, those obligations have been or will be

13 imposed where legally authorized and only where grantees are given “notice of their

14 obligation[s].” Id. at 2. Thus, the AG Memorandum provides a basis for the Court to reconsider

15 its conclusion that the grant-eligibility provision of the Executive Order extends beyond DOJ and

16 DHS grants, and that the provision purports to delegate new authority from the President to

17 agency heads regarding the imposition of conditions on federal grants.

18

In its justiciability analysis, the Court also determined that the grant-eligibility provision

19 of the Executive Order attempted to render state and local jurisdictions that declined to comply

20 with federal civil detainer requests ineligible to receive federal grants. Order of Apr. 25, 2017 at

21 23-27. The Court reached this determination by relying on public comments made by the

22 President, the White House Press Secretary, and the Attorney General. Id. That determination

23 served as the primary basis for the Court’s conclusion that San Francisco, which had adopted a

24 policy of noncompliance with federal civil detainer requests, showed a likelihood of enforcement

25 under the grant-eligibility provision of Section 9(a). Id.

26

Unlike public comments, however, the AG Memorandum constitutes formal and binding

27 guidance. The Memorandum clarifies that the grant-eligibility provision applies only to grant

28

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1 programs administered by DOJ or DHS that have grant terms explicitly requiring certification of

2 compliance with Section 1373 as a condition on the receipt of funding. See, e.g., AG Mem. at 1-

3 2. Contrary to this Court’s findings, the AG Memorandum concludes that “jurisdiction[s] that

4 fail[] to certify compliance with section 1373 will be ineligible to receive [an] award[].” AG

5 Mem. at 2. The Memorandum does not mention detainer requests. Rather, it confirms that

6 defendants may impose conditions on grant programming only under “existing statutory or

7 constitutional authority” and only where “grantees . . . receive notice of their obligation to

8 comply” with specific eligibility conditions. AG Mem. at 2. Because one of the primary bases

9 for this Court’s ruling – namely, non-binding press statements – has been supplanted, the Court

10 should reconsider its holding.

11

The Court also relied on its conclusion regarding forced compliance with federal civil

12 detainer requests in holding that San Francisco could show justiciable harm. Specifically, the

13 Court held that the purported requirement to comply with detainer requests compromised the

14 City’s Tenth Amendment rights by effectively forcing the City “to enforce the Federal

15 government’s immigration laws[.]” Order of Apr. 25, 2017 at 28. The Court should reconsider

16 that position for two reasons. First, conditioning the receipt of federal funds on whether a State

17 takes a particular action does not alone raise Tenth Amendment concerns, so long as the “State

18 could . . . adopt the simple expedient of not yielding to what she urges is federal coercion.” See S.

19 Dakota v. Dole, 483 U.S. 203, 210 (1987) (internal quotation marks omitted). But in any event,

20 as explained above, the AG Memorandum clarifies that the grant-eligibility provision does not

21 create a retroactive grant condition requiring compliance with federal civil detainer requests. AG

22 Mem. at 2. Accordingly, the Court should reconsider its holding that the grant-eligibility

23 provision forces local jurisdictions “to enforce the Federal government’s immigration laws” in a

24 manner that violates the Tenth Amendment. Order of Apr. 25, 2017 at 23-28.

25

In addressing the justiciability of San Francisco’s claims, the Court also held – based on

26 its broad interpretation of the grant-eligibility provision – that the City had established justiciable

27 harm because the provision purportedly jeopardized all federal grant funding received by the

28

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1 City, not just grants administered by DOJ and DHS. Order of Apr. 25, 2017 at 29-32. Based on

2 the presumption that the grant-eligibility provision encompassed all federal grant programs,

3 including those funded through reimbursement structures, the Court concluded that the City faced

4 budgetary uncertainty and potentially grave financial harm. Id. at 30.

5

Again, the AG Memorandum contradicts the Court’s interpretation of the scope of the

6 grant-eligibility provision, and consequently undermines plaintiff’s ability to establish justiciable

7 harm. As noted, the AG Memorandum confirms the limited scope of the grant-eligibility

8 provision: that provision applies only to grants administered by DHS or DOJ, and, with respect

9 to DOJ grants, only where the recipient fails to comply with an express obligation to certify

10 compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Only with respect to three grant

11 programs, all of which are administered by DOJ, have defendants identified Section 1373 as an

12 applicable federal law with which grantees are required to comply. See, e.g., Tr. of Oral Arg. at

13 35:2-9. At no point has San Francisco averred that this limited construction of the grant-

14 eligibility provision would cause the severe, concrete financial harm contemplated in the Court’s

15 Order. Moreover, the AG Memorandum mitigates the City’s claims of budgetary uncertainty by

16 clarifying the specific grant programs currently subject to the provision, and by confirming that

17 grant applicants or recipients will have prior notice of any conditions that might be placed in the

18 future on DOJ or DHS-administered grant programs. AG Mem. at 1-2.

19

Because the AG Memorandum’s clarification of the scope of the grant-eligibility

20 provision of Section 9(a) supplants many of the fundamental bases underlying the Court’s

21 determinations regarding justiciability, defendants respectfully request that the Court reconsider

22 those determinations in light of the conclusive position articulated in the Memorandum.

23 II. The AG Memorandum Provides a Basis for the Court to

24

Reconsider Its Determination that the Plaintiff is Likely to

Succeed on the Merits of Its Claims

25

Many of the Court’s determinations regarding plaintiff’s likelihood of success on the

26 merits are based on a reading of the Executive Order that is inconsistent with the position set forth

27 in the AG Memorandum. Under the conclusive interpretation of the Executive Order set forth in

28

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1 the Memorandum, plaintiff cannot establish a likelihood of success on any of its claims.

2 Accordingly, the Court should reconsider its previous determinations with respect to the merits of

3 plaintiff’s constitutional claims.

4

A. The AG Memorandum Alleviates the Court’s Separation of Powers Concerns

5

The AG Memorandum provides grounds for the Court to reconsider its conclusion that

6 “Section 9 [of the Executive Order] purports to give the Attorney General and the Secretary the

7 power to place a new condition on federal funds . . . not provided for by Congress.” Order of

8 Apr. 25, 2017 at 36. Based on that interpretation of the grant-eligibility provision, the Court

9 reasoned that the provision constituted an attempt by the President to “wield Congress’s exclusive

10 spending power,” in a manner that violated the constitutional separation of powers. Id. at 37.

11

The AG Memorandum, however, refutes the Court’s interpretation of the grant-eligibility

12 provision, and consequently undermines the Court’s separation of powers analysis. As the Court

13 recognized, “Congress can delegate some discretion to the President to decide how to spend

14 appropriated funds” so long as “any delegation and discretion is cabined by [relevant] constitu-

15 tional boundaries.” Id. at 36; see DKT Mem’l Fund Ltd., 887 F.2d at 280-81. Indeed, executive

16 agencies like DOJ have frequently utilized their congressionally delegated authority to tailor

17 grants to advance agency priorities. See, e.g., 2016 COPS Hiring Program Fact Sheet, DOJ

18 Community Oriented Policing Services, https://cops.usdoj.gov/ pdf/ 2016AwardDocs/ chp/

19 2016_CHP_FactSheet_v3.pdf (last visited May 22, 2017) (“Applicants that choose ‘Homicide’

20 and ‘Gun Violence’ as a problem area in their 2016 [COPS Hiring Program] application will

21 receive additional consideration for funding.”); 2015 COPS Hiring Program Fact Sheet, DOJ

22 Community Oriented Policing Services, https://cops.usdoj.gov/ pdf/ 2015AwardDocs/

23 chp/2015_CHP_PostAward_FactSheet.pdf (last visited May 22, 2017) (noting priority for

24 applicants whose applications focused on “school-based policing through School Resource

25 Officers”).

26

27

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1

The AG Memorandum makes clear that the grant-eligibility provision is not an attempt by

2 the President to unilaterally impose new conditions on federal grants. Rather, just as administra-

3 tions have in the past, the Executive Order “declare[s] the policy of the executive branch.” Exec.

4 Order 13,768 at 1. The grant-eligibility provision furthers the implementation of that policy by

5 directing the Secretary and the Attorney General to use lawful means to ensure compliance with

6 Section 1373. With respect to the imposition of conditions on federal grant programming, the AG

7 Memorandum confirms that such conditions would not be imposed pursuant to a purported

8 unilateral executive authority, but rather where “existing statutory or constitutional authority”

9 permits the imposition of such conditions. See AG Mem. at 2; see also Allbaugh, 295 F.3d at 33.

10

B. The AG Memorandum Alleviates the Court’s Spending Clause Concerns

11

The AG Memorandum also provides grounds for the Court to reconsider its conclusion

12 that the grant-eligibility provision violates constitutional Spending Clause restrictions. See Order

13 of Apr. 25, 2017 at 37-39. The Court relied on its broad interpretation of the grant-eligibility

14 provision in concluding that plaintiff established a likely violation of three specific Spending

15 Clause limitations: “(1) conditions must be unambiguous and cannot be imposed after funds have

16 already been accepted; (2) there must be a nexus between the federal funds at issue and the

17 federal program’s purpose; and (3) the financial inducement cannot be coercive.” Id. at 37.

18

With respect to its ambiguity concerns, the Court found that because the Executive Order

19 purported to “retroactively condition all ‘federal grants’ on compliance with Section 1373,” and

20 because the grant-eligibility provision lacked clarity as to the specific “Federal grants” that fell

21 within its scope, the Executive Order deprived plaintiff of the ability to “voluntarily and

22 knowingly choose to accept conditions on those funds.” Id. at 38 (emphasis added). The AG

23 Memorandum makes clear, however, that the grant-eligibility provision applies only to grant

24 programs administered by DOJ or DHS; that, in relation to DOJ grants, any conditions imposed

25 pursuant to the directives contained in the Executive Order will apply “to future grants”; and that

26 grant recipients or applicants “will receive notice” of their obligations. AG Mem. at 2 (emphasis

27 added). In other words, the grant-eligibility provision does not create retroactive conditions on

28

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1 federal grants. The position set forth in the AG Memorandum is thus consistent with the Supreme

2 Court’s oft-repeated presumption against retroactivity. See generally Fernandez-Vargas v.

3 Gonzales, 548 U.S. 30, 37 (2006).

4

The interpretation of the scope of the Executive Order provided in the AG Memorandum

5 also alleviates the Court’s concerns regarding the existence of a nexus between the federal funds

6 at issue and the federal program’s purpose. Relying on its interpretation of the term “Federal

7 grants” as applying to all federal funding, the Court found that a sufficient nexus could not exist

8 between compliance with Section 1373 and federal programs unrelated to law enforcement, such

9 as child welfare programs or vaccination programs. See Order of Apr. 25, 2017 at 38. But, as the

10 AG Memorandum establishes, the term “Federal grants” is not so broad. AG Mem. at 2. Rather,

11 it applies only to DHS or DOJ administered grant programs, and, with respect to DOJ grants, only

12 those programs that contain grant-eligibility terms that explicitly require compliance with Section

13 1373 as a condition of grant-eligibility. Id. Indeed, as the AG Memorandum explicitly

14 acknowledges, because “Section 9(a) expressly requires enforcement ‘to the extent consistent

15 with law,’ [it] does not call for the imposition of grant conditions that would violate any

16 applicable constitutional or statutory limitation,” id. at 1-2, which would include the “nexus”

17 requirement.

18

The position set forth in the AG Memorandum also mitigates the Court’s concern that the

19 grant-eligibility provision creates an unconstitutionally coercive financial inducement. As the

20 Court acknowledged, recent Supreme Court precedent on the Spending Clause’s coercion

21 limitation has held that the threat of denying federal funding that amounts to ten percent of a

22 state’s overall budget may be sufficiently severe to constitute unconstitutional coercion. Order of

23 Apr. 25, 2017 at 39 (citing Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012)).

24 Because the Court determined that the grant-eligibility provision of Section 9(a) threatens

25 defunding of “all federal grants” to San Francisco, amounting in the “hundreds of millions of

26 dollars,” it held that the provision was unconstitutionally coercive. Id.

27

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1

Again, the AG Memorandum contravenes this determination. In confirming that the term

2 “Federal grants” is limited to grant programs administered by DHS or DOJ that have grant terms

3 requiring compliance with Section 1373, the AG Memorandum drastically reduces the potential

4 coercive effect of the grant-eligibility provision. As mentioned, only three grant programs

5 currently fall within the scope of the provision, and plaintiff has put forth no evidence demon-

6 strating that the funding levels encompassed by those programs are so significant as to constitute

7 unconstitutional coercion.

8

Accordingly, because the AG Memorandum directly addresses and alleviates the

9 Spending Clause concerns that the Court articulated, defendants respectfully request that the

10 Court reconsider its analysis on those points.

11

C. The AG Memorandum Alleviates the Court’s Tenth Amendment Concerns

12

In analyzing San Francisco’s likelihood of success on the merits of its Tenth Amendment

13 claims, the Court held that the Executive Order “equates ‘sanctuary jurisdictions’ with ‘any

14 jurisdiction that ignored or otherwise failed to honor any [federal civil] detainer[] [requests]’ and

15 therefore places such jurisdictions at risk of losing all federal grants.” Order of Apr. 25, 2017 at

16 40. As a result of that interpretation, the Court found that the grant-eligibility provision of

17 Section 9(a) was likely unconstitutional under the Tenth Amendment because it effectively

18 sought “to compel the states and local jurisdictions to enforce a federal regulatory program

19 through coercion.” Id. The Court also found that the separate provision of Section 9(a)

20 instructing the Attorney General to “take appropriate enforcement action against any entity that

21 violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders

22 the enforcement of Federal law,” should be interpreted as an attempt to force state and local

23 jurisdictions to comply with civil detainer requests. Id. The Court relied on that interpretation as

24 additional support for the conclusion that San Francisco was likely to succeed in its Tenth

25 Amendment challenge.

26

27

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1

The AG Memorandum, however, undermines this conclusion.3 As an initial matter, the

2 Memorandum provides a definition of “sanctuary jurisdiction” that is untethered to compliance

3 with federal civil detainer requests. See AG Mem. at 2 (stating that, “for purposes of enforcing

4 the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that

5 ‘willfully refuse to comply with 8 U.S.C. 1373’”). The AG Memorandum further clarifies that

6 Section 1373 compliance obligations (as well as any other grant programming obligations) may

7 be imposed only pursuant to “existing statutory or constitutional authority,” and that “grantees

8 will receive notice of their obligation to comply with section 1373.” AG Mem. at 2.

9

The Court also held that mandating compliance with federal civil detainer requests in a

10 coercive manner or compelling compliance through enforcement actions “violates the Tenth

11 Amendment’s provisions against conscription.” Order of Apr. 25, 2017 at 40. Despite acknow-

12 ledging that noncompliance with federal civil detainer requests frustrates federal enforcement of

13 immigration laws, the Attorney General has not, to date, taken any enforcement action against

14 any jurisdiction for noncompliance with such requests, and the Attorney General is prohibited

15 from compelling compliance with federal civil detainer requests in a constitutionally imper-

16 missible manner. Moreover, the government has recently confirmed its position that federal civil

17 detainer requests “are voluntary . . . rather than mandatory commands.” See Br. of the United

18 States as Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651 at *22 (Mass.

19 Mar. 27, 2017). To the extent the plaintiff is concerned that the Attorney General might one day

20 engage in an enforcement action that the City believes is unconstitutional, it will undoubtedly

21 have an opportunity to assert its challenges in response to that hypothetical action, if it occurs.

22

Accordingly, because the AG Memorandum establishes that compliance with federal civil

23 detainer requests is not a precondition to the receipt of all federal grant funding, defendants

24

25
3 Indeed, even if compliance with federal civil detainer requests were an explicit condition

26 on the receipt of a federal grant award, the mere existence of such a condition would not alone

violate Spending Clause or Tenth Amendment principles. See Dole, 483 U.S. at 210 (holding that
27 a condition that might otherwise be deemed as infringing on State sovereignty does not violate

28

that sovereignty where the State can “adopt the simple expedient” of rejecting the funding). 17

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 23 of 40

1 respectfully request that the Court reconsider its holding that San Francisco has established a

2 likelihood of success on the merits of its Tenth Amendment claims.

3

D. The AG Memorandum Alleviates the Court’s Vagueness Concerns

4

Much of the Court’s vagueness analysis is predicated on the presumption that Section 9(a)

5 of the Executive Order effectively renders state and local jurisdictions that fail to comply with

6 Section 1373 automatically ineligible to receive any federal grants. See Order of Apr. 25, 2017 at

7 41-43. The Court found that, because the Order does not define the terms “sanctuary jurisdiction”

8 or “compliance with Section 1373,” federal grant recipients “do not know how to avoid the

9 Order’s defunding penalty,” thereby implicating constitutional vagueness concerns. Id. at 42.

10

Contrary to the Court’s interpretation, however, the AG Memorandum specifies that the

11 grant-eligibility provision does not create a self-effectuating defunding penalty. See, e.g.,

12 Allbaugh, 295 F.3d at 33 (noting that an executive order that required action “to the extent

13 consistent with law” was “not selfexecuting”). Section 9(a) of the Executive Order does not

14 impose retroactive conditions on all federal grants, nor does it attempt to alter the existing

15 requirements of Section 1373 (or any other federal law). See AG Mem. at 1-2. Rather, the AG

16 Memorandum specifies that the grant-eligibility provision applies only to DOJ or DHS grants

17 and, with respect to DOJ grants, only to those that contain grant terms requiring certification of

18 compliance with Section 1373. Id. Moreover, the Memorandum confirms that jurisdictions will

19 have notice of Section 1373 compliance obligations prior to the imposition of those obligations.

20 Id. Thus, the AG Memorandum “provide[s] explicit standards” governing the scope of the grant-

21 eligibility provision, thereby mitigating the Court’s vagueness concerns with that provision. See

22 Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972).

23

The Court also identified vagueness concerns regarding the separate provision of Section

24 9(a) that directs the Attorney General to take appropriate enforcement action against jurisdictions

25 that hinder enforcement of federal law (the “appropriate enforcement provision”). Although the

26 AG Memorandum does not directly address the appropriate enforcement provision of Section

27 9(a), the provision itself limits the Attorney General to taking “appropriate” action; the Attorney

28

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 24 of 40

1 General has taken no action whatsoever against San Francisco pursuant to the provision; and, in

2 any event, any jurisdiction subject to an enforcement action under that provision would

3 undoubtedly have the opportunity to challenge such action once it occurs. More importantly,

4 because the AG Memorandum sets forth the parameters of the grant-eligibility provision, and

5 because the harm identified by the City consists primarily of the potential loss of federal funding

6 and resultant budgetary uncertainty, the AG Memorandum mitigates any harm that the plaintiff

7 might assert as a result of the alleged vagueness contained in the appropriate enforcement

8 provision of Section 9(a).

9

Accordingly, defendants respectfully request that the Court reconsider its conclusion

10 under the Fifth Amendment vagueness doctrine in light of the guidance provided in the AG

11 Memorandum.

12

E. The AG Memorandum Alleviates the Court’s Due Process Concerns

13

The position set forth in the AG Memorandum also contradicts the Court’s procedural due

14 process analysis. As the Court explained, to state a procedural due process claim, a litigant must

15 identify “a legally protectable property interest and that he has suffered or will suffer a deprava-

16 tion of that property without adequate process.” Order of Apr. 25, 2017 at 43 (citing Thornton v.

17 City of Helens, 425 F.3d 1158, 1164 (9th Cir. 2005)). Here, the Court found that San Francisco

18 has a legally protectable property interest “in federal funds that Congress has already appropriated

19 and that the [plaintiffs] have accepted.” Order of Apr. 25, 2017 at 43. The Court further held that

20 the grant-eligibility provision of Section 9(a) purported to render the City ineligible to receive

21 those funds without appropriate process. Id.

22

The AG Memorandum undermines those determinations. As an initial matter, the AG

23 Memorandum makes clear that the grant-eligibility provision does not encompass all “funds that

24 Congress has already appropriated and that the [plaintiffs] have accepted.” Id. Rather, the

25 provision encompasses only grant programs administered by DHS or DOJ and only where the

26 grant-eligibility terms explicitly require compliance with Section 1373. See AG Mem. at 1-2.

27 Moreover, the grant-eligibility provision does not purport to create an automatic defunding

28

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 25 of 40

1 mechanism that would effectively terminate federal funding to San Francisco with no process of

2 law. Rather, only those jurisdictions “that fail[] to certify compliance with section 1373 will be

3 ineligible receive [an] award[]” under the specific grant programs that fall within the scope of the

4 provision. See AG Mem. at 2. Thus, based on the conclusive guidance contained in the AG

5 Memorandum, the City cannot establish that it is likely to succeed on its claim that the Executive

6 Order deprives it of a legally protected property interest without sufficient process of law.

7

Accordingly, defendants respectfully request that the Court reconsider its Fifth

8 Amendment procedural due process analysis.

9 III. 10

The Injunction Should Not Restrict Defendants’ Independent Authority to Impose Conditions on Grant Programming

11

Although defendants believe the Court should lift the injunction in this matter for the

12 above-stated reasons, should the Court determine that an injunction remains appropriate,

13 defendants respectfully seek clarification regarding the scope of the injunction’s prohibitions.

14 The Court has made clear that defendants may “use lawful means to enforce existing conditions

15 of federal grants or 8 U.S.C. 1373.” Order of Apr. 25, 2017 at 49. Defendants respectfully

16 request confirmation, however, that DOJ or DHS are not enjoined from exercising legal authority

17 independent of the Executive Order to impose conditions on grant programming for future DOJ

18 or DHS-administered grants.

19

As detailed above and in the accompanying declaration from the Office of Justice

20 Programs, with respect to certain grant programs, DOJ and DHS are legally authorized,

21 independent of Section 9(a) of the Executive Order, to impose certain conditions in grant

22 programming. See Declaration of Ralph Martin ¶¶ 5-11 (Attachment 2 hereto); see also Order of

23 Apr. 25, 2017 at 36 (acknowledging that executive agencies may have “some discretion . . . to

24 decide how to spend appropriated funds”). For example, prior to the issuance of the Executive

25 Order, DOJ had identified Section 1373 as an applicable federal law with which grantees are

26 required to comply in the JAG program, as well as under two other DOJ-administered grant

27 programs. See, e.g., Tr. of Oral Arg. at 35:2-9; Martin Decl. ¶ 17. Moreover, as the government

28

20

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 26 of 40

1 indicated at oral argument, “[g]oing forward . . . DOJ and, potentially, DHS” may choose to

2 impose similar conditions, where authorized to do so. See Tr. of Oral Arg. at 25:14-16; see also

3 AG Mem. at 2 (providing that, where legally authorized, defendants “may seek to tailor grants to

4 promote a lawful system of immigration”). To ensure that DHS and DOJ retain their ability to

5 exercise that previously existing authority, which is independent of the Executive Order,

6 defendants respectfully request that, should the Court decline to lift the injunction in this matter, it

7 clarify that the injunction does not prohibit defendants from utilizing grant-related legal

8 authorities that exist independent of the Executive Order.

9

CONCLUSION

10

For the foregoing reasons, defendants respectfully request that the Court reconsider its

11 entry of preliminary injunctive relief in light of the binding guidance articulated in the AG

12 Memorandum. Alternatively, defendants request that the Court clarify the scope of its Order to

13 specify that defendants are not enjoined from exercising their independent, constitutionally

14 permissible authority to impose conditions on certain grant programs they administer.

15 Dated: May 22, 2017

16

Respectfully submitted,

17

CHAD A. READLER

18

Acting Assistant Attorney General

19

BRIAN STRETCH

United States Attorney
20

21

JOHN R. TYLER Assistant Director

22

STEPHEN J. BUCKINGHAM

23

Special Counsel

24

/s/ W. Scott Simpson

25
W. SCOTT SIMPSON (Va. Bar #27487)

26

Senior Trial Counsel

27

28

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 27 of 40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs’ Motion for Reconsideration No. 3:17-cv-00485-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3330 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States
22

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 28 of 40
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Defendants’ Motion for Reconsideration or, in the
Alternative, Clarification of the Court’s Order of April 25, 2017
Attachment 1
Memorandum from the Attorney General for All Department Grant-Making Components (May 22, 2017)

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 29 of 40
®ffic.e of fq.e J\ftnrn.eu ®.en.era!
�as£ringtnn, �.QL 20530 May 22, 2017

MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS

FROM: SUBJECT:

THE ATTORNEY GENERA
I
,L Implementation of Executive er 13768,
"Enhancing Public Safety in tU Interior of the United States"

Federal law provides a process for foreign citizens to lawfully enter the country. Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role of federal agencies, including the Department of Justice, to enforce our immigration laws, prosecute violations, and secure our borders.
The President has established immigration enforcement as a priority for this Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," on January 25, 2017. The Executive Order makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 1373 provides in part that state and local jurisdictions "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officers] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding. Section 9(a) expressly requires enforcement "to the extent consistent with law," and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 30 of 40

Memorandum for All Department Grant-Making Components Subject: Implementation of Executive Order 13768,
"Enhancing Public Safety in the Interior of the United States"

Page2

statutory limitation. Nor does the Executive Order purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect. Indeed, apart from the Executive Order, the Department of Justice and the Department of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the Department of Justice will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to receive such awards. This certification requirement will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition. All grantees will receive notice of their obligation to comply with section 1373. The Department will administer this certification requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow, nothing in the Executive Order limits the Department's ability to point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department's law enforcement priorities. Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 31 of 40
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Defendants’ Motion for Reconsideration or, in the
Alternative, Clarification of the Court’s Order of April 25, 2017
Attachment 2
Declaration of Ralph Martin Office of Justice Programs U.S. Department of Justice

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 32 of 40

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 33 of 40

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 36 of 40

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Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 38 of 40

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 39 of 40
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Defendants’ Motion for Reconsideration or, in the
Alternative, Clarification of the Court’s Order of April 25, 2017
Attachment 3 Proposed Order

Case 3:17-cv-00485-WHO Document 102-2 Filed 05/22/17 Page 40 of 40

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11
CITY AND COUNTY OF SAN
12 FRANCISCO,

No. 3:17-cv-00485-WHO

13

Plaintiff,

14

v.

15 DONALD J. TRUMP, et al.,

ORDER ON MOTION FOR RECONSIDERATION OF THE COURT’S ORDER OF APRIL 25, 2017

16

Defendants.

17
The defendants have filed a Motion for Reconsideration of the Court’s Order of April 25,
18
2017 (ECF No. ___). Having considered defendants’ motion and all materials submitted in
19
relation thereto, and good cause having been shown,
20
IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration of the Court’s
21
Order of April 25, 2017 (ECF No. ___) is GRANTED;
22
AND IT IS FURTHER ORDERED that the Court’s Order Granting the County of Santa
23
Clara’s and City and County of San Francisco’s Motions to Enjoin Section 9(a) of Executive
24
Order 13768 (ECF No. 82) is hereby VACATED.
25
26 IT IS SO ORDERED.

27 Dated: May ____, 2017 28

By: ________________________ WILLIAM H. ORRICK United States District Judge

Order on Motion for Reconsideration No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 102-3 Filed 05/22/17 Page 1 of 2
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Defendants’ Motion for Leave to File a Motion for
Reconsideration of the Court’s Order of April 25, 2017
Attachment 3 Proposed Order

Case 3:17-cv-00485-WHO Document 102-3 Filed 05/22/17 Page 2 of 2

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11
CITY AND COUNTY OF SAN
12 FRANCISCO,

No. 3:17-cv-00485-WHO

13

Plaintiff,

14

v.

15 DONALD J. TRUMP, et al.,

ORDER ON MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION OF THE COURT’S ORDER OF APRIL 25, 2017

16

Defendants.

17
The defendants have filed a Motion for Leave to File a Motion for Reconsideration of the
18
Court’s Order of April 25, 2017 (ECF No. ___). Having considered defendants’ motion and all
19
materials submitted in relation thereto, and good cause having been shown,
20
IT IS HEREBY ORDERED that Defendants’ Motion for Leave to File a Motion for
21
Reconsideration of the Court’s Order of April 25, 2017 (ECF No. ___) is GRANTED;
22
AND IT IS FURTHER ORDERED that Defendants’ Motion for Reconsideration of the
23
Court’s Order of April 25, 2017, shall be deemed filed as of the date of this Order and that further
24
briefing of the Motion for Reconsideration shall proceed pursuant to Civil Local Rule 7-3.
25
26 IT IS SO ORDERED.

27 Dated: May ____, 2017 28

By: ________________________ WILLIAM H. ORRICK United States District Judge

Order on Motion for Leave No. 3:17-cv-00485-WHO

 
 Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 1 of 53

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

Plaintiff,

SECOND AMENDED COMPLAINT FOR

19

DECLARATORY AND INJUNCTIVE RELIEF

vs.

20

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

JOHN F. KELLY, Secretary of United States

22 Department of Homeland Security,

JEFFERSON B. SESSIONS III, Attorney

23 General of the United States, DOES 1-100,

24

Defendants.

25

26

27

28

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1

INTRODUCTION

2

1. In blatant disregard of the law, the President of the United States seeks to coerce local

3 authorities to bend to his will and abandon “Sanctuary City” laws and policies. To that end, on

4 January 25, 2017, the President issued an Executive Order entitled “Enhancing Public Safety in the

5 Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Executive

6 Order”). The Executive Order announces that it is the Executive Branch’s policy to withhold federal

7 funds from “sanctuary jurisdictions,” directs the Attorney General and Secretary of Homeland Security

8 to ensure that sanctuary jurisdictions do not receive federal grants, and directs the Attorney General to

9 take enforcement action against any local entity that “hinders the enforcement of Federal law.” The

10 Executive Order undermines established principles of federalism and separation of powers, violates

11 the United States Constitution, and impermissibly threatens cities with catastrophic financial

12 consequences.

13

2. The President and San Francisco agree that the City and County of San Francisco

14 (“San Francisco”) is a Sanctuary City, but disagree about what that means. San Francisco laws limit

15 when city employees and agencies may assist with the enforcement of federal immigration law. These

16 laws generally prohibit city employees from using city funds or resources to assist in the enforcement

17 of federal immigration law, unless required by federal or state law. They specifically prohibit local law

18 enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer

19 requests, which are voluntary, and limit when local law enforcement officers may give ICE advance

20 notice of a person’s release from local jail.

21

3. Like many other cities, San Francisco is a city of immigrants—many of whom are

22 undocumented—who come here to live, work, and raise families. San Francisco’s Sanctuary City laws

23 make San Francisco safer, healthier, and economically stronger. San Francisco is safer when all

24 people, including undocumented immigrants, feel safe reporting crimes. San Francisco is healthier

25 when all residents, including undocumented immigrants, access public health programs. And

26 San Francisco is economically and socially stronger when all children, including undocumented

27 immigrants, attend school. Using city and county resources for federal immigration enforcement

28 breeds distrust of local government and officials who have no power to change federal laws, and can

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1 also wrench apart family and community structures that support residents and thus conserve resources.

2 For these reasons, among others, San Francisco has directed its employees and officers not to assist the

3 Federal government in enforcing federal immigration law, with limited exceptions.

4

4. San Francisco faces the imminent loss of more than $2 billion in federal funds and

5 impending enforcement action if it does not capitulate to the President’s demand that it help enforce

6 federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat.

7

5. The threat San Francisco faces now is particularly troubling given that San Francisco

8 already complies with all federal immigration laws. The Executive Order relies on Title 8, Section

9 1373 of the United States Code (“Section 1373”), which provides that local governments may not

10 prohibit or restrict any government entity or official from “sending to, or receiving from, [federal

11 immigration officials] information regarding the citizenship or immigration status . . . of any

12 individual.”

13

6. San Francisco’s laws comply with Section 1373. San Francisco previously prohibited

14 employees and officials from sharing information regarding immigration status but amended this

15 language to ensure compliance with Section 1373. Under current law, San Francisco does not prohibit

16 or restrict its employees from sharing information about the citizenship or immigration status of any

17 individual with federal immigration officials.

18

7. The Constitution establishes a balance of power between the state and Federal

19 governments, as well as among the coordinate branches of Federal government, to prevent the

20 excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from

21 any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated

22 to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States

23 respectively, or to the people.” This state sovereignty extends to political subdivisions of the State,

24 including cities and counties such as San Francisco.

25

8. The Executive Order invades San Francisco’s sovereignty and seeks to commandeer

26 state and local officials to enforce federal law. Under the Constitution and established principles of

27 federalism, state and local governments have the autonomy to devote resources to local priorities and

28 to control the exercise of their own police powers, rather than being forced to carry out the agenda of

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1 the Federal government. The Executive Order purports otherwise to wrest this autonomy from state

2 and local governments.

3

9. In addition to violating the Tenth Amendment, the Executive Order violates the

4 Constitution’s separation of powers and the Spending Power that Article I, Section 8 of the

5 Constitution grants exclusively to Congress. Congress, not the Executive Branch, has the authority to

6 determine how federal funds will be spent.

7

10. San Francisco recognizes that there will be additional developments related to the

8 Executive Order in the weeks and months to come. But the consequences threatened by the Executive

9 Order are too severe for San Francisco to wait. The Executive Order threatens funds that support vital

10 services, the loss of community trust, and the loss of San Francisco’s sovereign authority to set and

11 follow its own laws on matters appropriately and historically within the control of local government.

12 San Francisco has no choice but to seek the intervention of this Court to ensure that its rights and

13 residents are protected, and that the Administration complies with Federal law and the Constitution.

14

15

JURISDICTION AND VENUE

16

11. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has

17 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

18 seq.

19

12. Venue properly lies within the Northern District of California because Plaintiff,

20 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

21 rise to this action occurred in this District. 28 U.S.C. § 1391(e).

22

PARTIES

23

13. Plaintiff San Francisco is a municipal corporation organized and existing under and by

24 virtue of the laws of the State of California, and is a charter city and county.

25

14. Defendant Donald J. Trump is the President of the United States. He is sued in his

26 official capacity.

27

15. Defendant United States of America is sued under 28 U.S.C. Section 1346.

28 //

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1

16. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the

2 United States Federal government with the primary mission of securing the United States. Defendant

3 John F. Kelly is the Secretary of DHS. Secretary Kelly is responsible for executing relevant provisions

4 of the Executive Order. Secretary Kelly is sued in his official capacity.

5

17. The Attorney General (“AG”) is a cabinet department of the United States Federal

6 government overseeing the Department of Justice. Defendant Jefferson B. Sessions is the Attorney

7 General. Attorney General Sessions is responsible for executing relevant provisions of the Executive

8 Order. Attorney General Sessions is sued in his official capacity.1

9

18. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the

10 true names or capacities of said Defendants, who were responsible for the alleged violations alleged,

11 but pray that the same may be alleged in this complaint when ascertained.

12

FACTUAL ALLEGATIONS

13 I. SAN FRANCISCO’S SANCTUARY CITY LAWS

14

19. San Francisco has been a Sanctuary City since 1989. In the 1980s, thousands of Central

15 American refugees fled countries in the midst of violent civil wars to seek legal protection in the

16 United States. Against the backdrop of this humanitarian crisis, San Francisco began enacting the

17 ordinances that, as later amended, make up San Francisco’s Sanctuary City laws.

18

20. Numerous other municipalities have also enacted Sanctuary City laws. Although the

19 details of their ordinances differ, all of these jurisdictions have adopted laws or policies that limit

20 using local resources to implement and enforce federal immigration laws.

21

21. Today, San Francisco’s body of Sanctuary City law is contained in two chapters of

22 San Francisco’s Administrative Code: Chapters 12H and 12I. Importantly, these chapters do not

23 protect criminals or prevent people from being prosecuted for illegal acts. Instead, they protect

24 children by ensuring that their parents feel safe taking them to playgrounds, to schools, and to

25 hospitals. They support family stability and community engagement. And they protect the safety and

26 health of all residents of San Francisco by helping to ensure that everyone, including undocumented

27 1 Attorney General Sessions assumed office on February 9, 2017, thereby replacing Acting
28 Attorney General Dana J. Boente as a defendant, pursuant to Fed. R. Civ. P. 25(d).

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1 immigrants, feels safe reporting crimes, cooperating with police investigations, and seeking medical

2 care.

3

22. San Francisco Administrative Code Chapter 12H—the full text of which is attached as

4 Exhibit 1—prohibits San Francisco departments, agencies, commissions, officers, and employees from

5 using San Francisco funds or resources to assist in the enforcement of Federal immigration law or to

6 gather or disseminate information regarding the release status, or other confidential identifying

7 information, of an individual unless such assistance is required by Federal or state law.

8

23. Chapter 12H previously prohibited disseminating information regarding the

9 immigration status of any individual, but the Board of Supervisors amended Chapter 12H in July 2016

10 to, inter alia, delete that prohibition in order to ensure compliance with Section 1373.

11

24. San Francisco Administrative Code Chapter 12I—the full text of which is attached as

12 Exhibit 2—prohibits San Francisco law enforcement officials from detaining an individual who is

13 otherwise eligible for release from custody on the basis of a civil immigration detainer request issued 14 by the Federal government.2

15

25. A detainer request is distinct from a criminal warrant, which San Francisco honors

16 consistent with its Sanctuary City laws. A detainer request is not issued by a judge based on a finding

17 of probable cause. It is simply a request by ICE that a state or local law enforcement agency hold

18 individuals after their release date to provide ICE agents extra time to decide whether to take those

19 individuals into federal custody and then deport them.

20

26. Complying with detainer requests requires municipalities to commit scarce law

21 enforcement personnel and resources to track and respond to requests, detain individuals in holding

22 cells, and supervise and feed individuals during the prolonged detention. And the Federal government

23 has made clear that the local agency bears the financial burden of the detention, providing that “[n]o

24 2 Section 287.7 of Title 8 of the Code of Federal Regulations allows ICE to issue detainer
25 requests to local jurisdictions. Section 287.7 provides that such a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that
26 agency, for the purpose of arresting and removing the alien.” Subsection (d) provides that “[u]pon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal
27 justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the
28 Department.”

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1 detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal

2 obligation on the part of the Department.” 8 C.F.R. § 287.7(e).

3

27. Further, complying with civil immigration detainer requests, in the absence of a

4 probable cause determination, violates the Fourth Amendment to the United States Constitution and

5 could subject San Francisco to civil liability. See Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir.

6 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also

7 Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to

8 immigration arrests).

9

28. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

10 a federal immigration officer’s request for advance notification of the date and time an individual in

11 San Francisco’s custody is being released, unless the individual in question meets certain criteria. See

12 S.F. Admin. Code § 12I.3(c), (d).

13

29. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall

14 not arrest or detain an individual, or provide any individual’s personal information to a federal

15 immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil

16 immigration document based solely on alleged violations of the civil provisions of immigration laws.”

17 See Section 12I.3(e). “Personal information” is defined as “any confidential, identifying information

18 about an individual, including, but not limited to, home or work contact information, and family or

19 emergency contact information.” See Section 12I.2.

20

30. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to

21 federal civil immigration detainers, notification of release of individuals, transmission of personal

22 information, or civil immigration documents, based solely on alleged violations of the civil provisions

23 of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement

24 agencies may continue to collaborate with federal authorities to protect public safety.” See Section

25 12I.4.

26

31. San Francisco’s Sanctuary City laws arise from San Francisco’s commitment and

27 responsibility to ensure public safety and welfare. The Board of Supervisors, as San Francisco’s

28 legislative body, found that public safety is “founded on trust and cooperation of community residents

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1 and local law enforcement.” Section 12I.1. Citing a study by the University of Illinois, which found

2 that at least 40% of Latinos surveyed were less likely to provide information to police because they

3 feared exposing themselves, family, or friends to a risk of deportation, the Legislature stated that “civil

4 immigration detainers and notifications regarding release undermine community trust of law

5 enforcement by instilling fear in immigrant communities of coming forward to report crimes and

6 cooperate with local law enforcement agencies.” Id.; see also id. (“The City has enacted numerous

7 laws and policies to strengthen communities and to build trust between communities and local law

8 enforcement. Local cooperation and assistance with civil immigration enforcement undermines

9 community policing strategies.”). Indeed, a recent study shows that crime is statistically significantly

10 lower in sanctuary counties compared to non-sanctuary counties. See Tom K. Wong, The Effects of

11 Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017),

12 https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-

13 ofsanctuary-policies-on-crime-and-the-economy/.

14

32. The legislative findings set forth in Chapter 12I evidence the legitimate local purpose of

15 San Francisco’s Sanctuary City laws. For example, the Legislature declared:

16

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

17

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

18

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

19

cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure

20

community security, and due process for all. (See Section 12I.2.)

21

33. The Board of Supervisors also had a public health purpose for its decision to restrict

22 disclosure of confidential information: “To carry out public health programs, the City must be able to

23 reliably collect confidential information from all residents . . . . Information gathering and cooperation

24 may be jeopardized if release of personal information results in a person being taken into immigration

25 custody.” Section 12I.1.

26

34. Finally, the Board of Supervisors determined that enforcing immigration detainer

27 requests would require San Francisco to redirect scarce local law enforcement personnel and

28 resources—noting that the costs of “responding to a civil immigration detainer can include, but [are]

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1 not limited to, extended detention time, the administrative costs of tracking and responding to

2 detainers, and the legal liability for erroneously holding an individual who is not subject to a civil

3 immigration detainer.” Id. In short, the Board of Supervisors concluded that “[c]ompliance with civil

4 immigration detainers and involvement in civil immigration enforcement diverts limited local

5 resources from programs that are beneficial to the City.” Id.

6

35. California law incorporates local Sanctuary City laws such as Chapters 12H and 12I.

7 The TRUST Act states that local law enforcement officials may comply with ICE detainer requests

8 only if (1) the continued detention would not violate any federal, state, or local law, or any local

9 policy, and (2) the defendant’s criminal history meets specified conditions. Cal. Gov’t Code §§ 7282,

10 7282.5. Thus, because in San Francisco ICE detentions are prohibited under local law, they are also

11 prohibited under state law.

12 II. 13 14

SECTION 1373
A. San Francisco Complies With Section 1373 By Not Prohibiting Its Employees From Sharing “Citizenship Or Immigration Status” Information With The Federal Government

15

36. Section 1373 provides that a “local government entity or official may not prohibit, or in

16 any way restrict, any government entity or official from sending to, or receiving from, [federal

17 immigration officials] information regarding the citizenship or immigration status . . . of any

18 individual.” 8 U.S.C. § 1373(a). This restriction exclusively regulates government entities.

19

37. Section 1373 requires San Francisco to allow its employees to use city resources,

20 including San Francisco tax dollars, to respond to requests for information about citizenship and

21 immigration status.

22

38. San Francisco complies with Section 1373.

23

39. Nothing in San Francisco Administrative Code Chapters 12H or 12I limits

24 communications regarding citizenship or immigration status in any way.

25

40. And, indeed, under ICE’s recently restored Secure Communities program (also known

26 as “S-Comm”), whenever an individual is taken into custody, the person is digitally fingerprinted and

27 those fingerprints are sent to the California Department of Justice and ultimately the FBI. The FBI

28 //

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1 forwards the fingerprints to DHS, which allows ICE to determine the immigration status of everyone

2 in San Francisco custody.

3

41. Under Chapter 12I and the TRUST Act, San Francisco does not enforce detainer

4 requests (see ¶26, supra), and does not respond to notification requests from the Federal government

5 unless certain conditions are met (see ¶30, supra). But compliance with such requests is not required

6 by Section 1373, which speaks only to communications regarding citizenship and immigration status.

7

42. San Francisco has affirmatively instructed personnel regarding the substance of Section

8 1373 in a recent memorandum to all San Francisco employees from the San Francisco Human

9 Resources Director.

10

B. The United States Improperly Interprets Section 1373 To Require Compliance

With Detainer Requests 11

12

43. On May 31, 2016, in response to a request from the Office of the Attorney General, the

13 Office of the Inspector General (“OIG”) of the Department of Justice issued a memorandum (“OIG

14 Memo”) regarding potential violations of Section 1373 by recipients of funding from the

15 Edward Byrne Memorial Justice Assistance Grant Program (“JAG”). Memorandum from

16 Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice

17 Programs, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by

18 Grant Recipients (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.3

19

44. In analyzing the local laws and policies of ten selected state and local jurisdictions, OIG

20 demonstrated how the Federal government interprets Section 1373.

21

45. Although Section 1373 does not expressly address immigration detainers, OIG

22 expressed concern that local laws concerning the handling of detainer requests “may have a broader

23 practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore,

24 be inconsistent with at least the intent of Section 1373.” OIG Memo at 7. It went on to state that local

25 laws and policies that “purport to be focused on civil immigration detainer requests [and say nothing

26 3 The authorizing legislation for the JAG program requires that all grant applicants certify
27 compliance with the provisions of the authorizing legislation and all other “applicable federal laws.” 42 U.S.C. § 3750 et seq. The U.S. Department of Justice, Office of Justice Programs has recently
28 announced that Section 1373 is an “applicable” law under the JAG authorizing legislation.

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1 about sharing immigration status with ICE] . . . may nevertheless be affecting ICE’s interactions with

2 the local officials regarding ICE immigration status requests.” Id.

3

46. OIG also stated that such immigration detainer request policies “may be causing local

4 officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE

5 in all respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id.

6 at 8.

7

47. In the OIG Memo, the Federal government also endorses the view that local

8 jurisdictions hinder the enforcement of Federal immigration law if they do not honor detainer requests

9 or if they place any other limitations on cooperation with ICE. See, e.g., id. at 4 (stating that even

10 though Section 1373 does not specifically address restrictions by state or local entities on cooperation

11 with ICE regarding detainers, “[a] primary and frequently cited indicator of limitations placed on

12 cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction

13 handles immigration detainer requests issued by ICE”).

14

48. Yet, San Francisco cannot lawfully comply with ICE detainer requests. Complying with

15 civil immigration detainer requests, in the absence of a determination of probable cause, would violate

16 the Fourth Amendment to the United States Constitution and could subject San Francisco to civil

17 liability for this harm. See Arizona v. United States, 132 S. Ct. 2492, 2509 (2012) (noting that

18 “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns”);

19 Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty.,

20 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th

21 Cir. 2012) (applying the Fourth Amendment to immigration arrests).

22

49. In the OIG Memo, OIG recommended that the U.S. Department of Justice, Office of

23 Justice Programs (“OJP”) provide JAG recipients clear guidance on their obligation to comply with

24 Section 1373 and require them to certify that they comply with that section. See OIG Memo at 9.

25

50. In response to these recommendations, in July and October 2016 OJP issued guidance

26 regarding compliance with Section 1373. See Office of Justice Programs, Guidance Regarding

27 Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST. (July 7, 2016) (“OJP July Guidance”); Office of

28 //

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1 Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST.

2 (October 6, 2016) (“OJP October Guidance”).

3

51. In the OJP July Guidance, OJP reads Section 1373 to impose an affirmative obligation

4 on state and local governments. The Guidance states that to comply with Section 1373, “[y]our

5 personnel must be informed that notwithstanding any state or local policies to the contrary, federal law

6 does not allow any government entity or official to prohibit the sending or receiving of information

7 about an individual’s citizenship or immigration status with any federal, state or local government

8 entity and officials.” OJP July Guidance at 1 (emphasis added). Accordingly, OJP reads into the law

9 an affirmative obligation to instruct personnel regarding the substance of Section 1373.

10

52. In the October 2016 Guidance, OIG stated that all JAG applicants must comply with—

11 and certify their compliance with—Section 1373. OJP October Guidance at 1.

12

53. As a grantee of JAG grants, San Francisco is required to certify its compliance with

13 Section 1373.

14 III. THE EXECUTIVE ORDER

15

A. The Executive Order Cuts Off Federal Funding From Sanctuary Jurisdictions

And Directs Enforcement Action Against Them 16

17

54. On January 25, 2017, President Donald J. Trump issued the Executive Order attached

18 as Exhibit 3.

19

55. The Executive Order declares, “Sanctuary jurisdictions across the United States

20 willfully violate Federal law in an attempt to shield aliens from removal from the United States. These

21 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

22 Republic.” Executive Order at 8799.

23

56. To address the purported harm caused by Sanctuary Cities, the Executive Order

24 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not receive

25 Federal funds, except as mandated by law.” Id.

26

57. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

27 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a

28 State, shall comply with 8 U.S.C. 1373.” Id. at 8801.

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1

58. Section 9(a) of the Executive Order establishes a funding restriction (the “Funding

2 Restriction”):

3

In furtherance of this policy, the Attorney General and the Secretary, in their discretion

4

and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

5

Federal grants, except as deemed necessary for law enforcement purposes by the

Attorney General or the Secretary. The Secretary has the authority to designate, in his

6

discretion and to the extent consistent with law, a jurisdiction as a sanctuary

jurisdiction. 7

8 Id.

9

59. Section 9(a) of the Executive Order also mandates enforcement action (the

10 “Enforcement Directive”):

11 12 13 Id.

The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

14

60. Section 9(a) of the Executive Order defines “sanctuary jurisdictions” as those

15 jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” But Section 9(b) indicates that

16 Defendants in fact define that category quite broadly as including any jurisdiction that declines to

17 comply with ICE detainer requests:

18 To better inform the public regarding the public safety threats associated with

19

sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer

Outcome Report or its equivalent and, on a weekly basis, make public a

20

comprehensive list of criminal actions committed by aliens and any jurisdiction

that ignored or otherwise failed to honor any detainers with respect to such

21

aliens.

22

61. The Executive Order thus attempts to mandate compliance with detainer requests as

23 part of Section 1373 compliance, with the consequence that a jurisdiction such as San Francisco that

24 does not comply with ICE detainer requests will lose federal funds under the Executive Order.

25

62. A jurisdiction that fails to comply with detainer requests also faces enforcement action

26 under Section 9(a)’s Enforcement Provision. As discussed further below, Defendants view the local

27 decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or

28 hinders the enforcement of Federal law.”

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1

B. Defendants Have Labeled San Francisco A Sanctuary Jurisdiction Within The

Meaning Of The Executive Order

2

3

63. As discussed above, San Francisco does comply with Section 1373, properly construed.

4 Nonetheless, Defendants deem San Francisco a sanctuary jurisdiction pursuant to their overly broad

5 definition of that term.

6

64. If there were any question about whether Defendants deem San Francisco as a

7 “sanctuary jurisdiction,” that question is answered by Defendants’ own statements, which clearly

8 characterize San Francisco as a Sanctuary City.

9

65. For example, in a written campaign speech, then-candidate Donald J. Trump gave in

10 Phoenix, Arizona on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City. See

11 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

12 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration (“Another

13 victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant

14 deported five previous times.”).

15

66. Further, Defendants have repeatedly identified Sanctuary Cities, and specifically

16 San Francisco, as those that decline detainer requests and otherwise do not affirmatively support

17 federal immigration enforcement.

18

• In statements to the Daily Caller on July 7, 2015, Congressman Darrell Issa and

19

now-Attorney General Sessions criticized San Francisco and other sanctuary

20

jurisdictions for failing to honor detainers. Sessions stated, “This disregarding of

21

detainers and releasing persons that ICE has put a hold on—it goes against all

22

traditions of law enforcement. Laws and courtesies within departments— if you

23

have somebody charged with a crime in one city, you hold them until you complete

24

your business with them . . . . So what was happening was, ICE authorities were

25

filing detainers and sanctuary cities were saying, ‘We’re not gonna honor them.

26

They finished paying for the crime they committed in our city— we’ve released

27

them.’” Kerry Picket, Sen. Sessions: City Officials Harboring Illegal Immigrant

28

Felons Could Be Charged with Crime, Daily Caller (July 7, 2015, 10:07 PM),

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 //

http://dailycaller.com/2015/07/07/sen-sessions-city-officials-harboring-illegalimmigrant-felons-could-be-charged-with-crime/#ixzz4XE9I12Ux. • On July 8, 2015, Sessions gave a speech to Congress describing San Francisco as “a jurisdiction that is known to release illegal immigrants back into the public,” and one which refused to “honor” a detainer sought by federal authorities. News Release, Office of Senator Jeff Sessions, Senator Sessions Calls on Congress To Take Up Immigration Reform for Americans (July 9, 2015), http://www.sessions.senate.gov/public/index.cfm/news-releases?ID=B7A98B638ECA-4A4E-B5C8-4A665F2343DE. • In an interview with Breitbart News in May 2016, then-candidate Donald J. Trump stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and people that should not have a safe-haven in many cases. It’s just unacceptable. We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive — Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’ Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016), http://www.breitbart.com/2016-presidential-race/2016/05/16/exclusive-donald-jtrump-to-san-francisco-sanctuary-cities-unacceptable-a-disaster-creating-safehaven-for-criminals/. This Breitbart news report further stated that “Trump’s comments . . . come in response to efforts by far left progressive organizations in San Francisco to expand that city’s sanctuary city laws.” Id. • Another Breitbart News article published on November 21, 2016 regarding Sanctuary Cities quoted Texas Republican Congressman John Culberson as stating, “The law requires cooperation with immigration officials 100 percent of the time.” Bob Price, Sanctuary Cities Risk Losing DOJ Funds in 2017, Texas Congressman Says, Breitbart News (Nov. 21, 2016), http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds2017-texas-congressman-says/.

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1

67. Defendants have also repeatedly stated their intent to strip federal funding from

2 Sanctuary Cities.

3

 In a statement by White House Press Secretary Sean Spicer on January 25, 2017

4

announcing the issuance of the Executive Order, Spicer stated, “We are going to

5

strip federal grant money from the sanctuary states and cities that harbor illegal

6

immigrants. The American people are no longer going to have to be forced to

7

subsidize this disregard for our laws.” White House, 1/25/17: White House Press

8

Briefing, YouTube (Jan. 25, 2017),

9

https://www.youtube.com/watch?v=OaPriMVvtZA.

10

 A press release from the Office of the Press Secretary for the White House issued

11

on January 28, 2017 detailing President Trump’s First Week of Action, reads in

12

relevant part: “President Trump signed an executive order to ensure that

13

immigration laws are enforced throughout the United States, including halting

14

federal funding for sanctuary cities.” Press Release, The White House, Office of the

15

Press Secretary, President Trump’s First Week of Action (Jan. 28, 2017),

16

https://www.whitehouse.gov/the-press-office/2017/01/28/president-trumps-first-

17

week-action.

18

 Press Secretary Sean Spicer reiterated this goal on February 1, 2017, stating “I think

19

the President’s goal in ending sanctuary cities is pretty clear. . . . [T]he President

20

has been very clear through his executive order that federal funds, paid for by

21

hardworking taxpayers, should not be used to help fund sanctuary cities.” Press

22

Release, The White House, Office of the Press Secretary, Press Briefing by Press

23

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017),

24

https://www.whitehouse.gov/the-pressoffice/2017/02/01/press-briefing-press-

25

secretary-sean-spicer-212017-6.

26

68. Indeed, Defendants have explicitly stated their intent to use federal funding cuts as a

27 “weapon” against Sanctuary Cities, in an attempt to coerce jurisdictions to bend to their will.

28 //

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1

 In an interview with Bill O’Reilly on February 5, 2017, President Trump called the

2

efforts of California lawmakers to propose legislation that could stop state police and

3

sheriffs from enforcing federal immigration laws “ridiculous.” Alexander Mallin and

4

Lissette Rodriguez, Trump Threatens Defunding Sanctuary States as 'Weapon', ABC

5

News (Feb. 5, 2017, 6:01 PM), http://abcnews.go.com/Politics/trump-threatens-

6

defunding-sanctuary-states-weapon/story?id=45286642. He stated: “I don't want to

7

defund anybody. I want to give them the money they need to properly operate as a

8

city or a state.” But he said, “If they’re going to have sanctuary cities, we may have

9

to do that. Certainly that would be a weapon.” Id. “Sanctuary cities, as you know I’m

10

very much opposed to sanctuary cities -- they breed crime, there’s lots of problems.”

11

Id. “We give tremendous amounts of money to California,” Trump said. “Obviously

12

the voters agree or otherwise they wouldn't have voted for me.” Id.

13

 When asked at a press briefing whether Cincinnati would face sanctions for voting to

14

become a Sanctuary City, Sean Spicer, the President’s press secretary stated:

15

As I’ve noted before, at the end of the day, this order is about two

things: one, keeping our cities safe, and two, respecting the hard-

16

earned taxpayers who send their money to the federal government.

And the President is going to do everything he can within the scope

17

of the executive order to make sure that cities who don’t comply

with it -- counties and other institutions that remain sanctuary cities

18

don’t get federal government funding in compliance with the

executive order. I think more areas like Miami-Dade, down in

19

Florida, understand the importance of this order, and we hope cities

like Cincinnati and other communities around the country follow

20

their lead and comply with that.

21

Press Release, The White House, Office of the Press Secretary, Press Briefing by

22

Press Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017),

23

https://www.whitehouse.gov/the-press-office/2017/02/08/press-briefing-press-

24

secretary-sean-spicer-282017-10.

25

69. The White House’s public website states that President Trump “is dedicated to

26 enforcing our border laws, ending sanctuary cities, and stemming the tide of lawlessness associated

27 with illegal immigration.” Standing Up For Our Law Enforcement Community, The White House,

28 //

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1 https://www.whitehouse.gov/law-enforcement-community (last visited on Feb. 27, 2017) (emphasis

2 added).

3

70. Defendants’ statements demonstrate their belief that Sanctuary Cities, like

4 San Francisco, violate Section 1373 and their intent that Sanctuary Cities will lose federal funding—

5 apparently all or almost all federal funding—and be subject to enforcement action under the Executive

6 Order.

7

71. There is a “credible threat” that Defendants will seek to enforce the unconstitutional

8 Executive Order against San Francisco.

9 IV. 10 11 12 13 14

SECTION 1373 AND THE EXECUTIVE ORDER HARM SAN FRANCISCO A. Constitutional Injury
1. The Executive Order Violates The Tenth Amendment, Separation Of Powers, And The Spending Clause a. The Executive Order Funding Restriction Is Unconstitutional i. Separation of Powers

15

72. As a threshold matter, the Funding Restriction purports to exercise Spending Power that

16 Article I, Section 8 of the Constitution grants exclusively to Congress.

17

73. The Executive Order violates the separation of powers by creating a penalty for Section

18 1373 that Congress did not authorize, without regard to statutory rules on grant programs put in place

19 by Congress. The Executive Order effectively legislates a sanction for violations of Section 1373 by

20 using the statute as a basis to broadly deny federal grants to municipalities that have made a policy

21 decision to focus law enforcement resources on local problems and limit their entanglement with

22 federal immigration enforcement. The President’s unilateral imposition of this new sanction and

23 condition on spending is not supported by any act of Congress, including the Immigration and

24 Nationality Act, 8 U.S.C. § 1101 et seq., or by the Constitution.

25

74. The Funding Restriction additionally violates the separation of powers by imposing a

26 new restriction on jurisdictions’ eligibility to receive federal funds: “jurisdictions that willfully refuse

27 to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,

28 //

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1 except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”

2 Executive Order at 8801.

3

75. The President may not unilaterally impose new restrictions on jurisdictions’ eligibility

4 for federal funding. Any restriction on eligibility for federal funds must be imposed—clearly,

5 unambiguously, and in advance—by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

6 1, 17 (1981). When Congress has not imposed such a restriction by statute, the President may not do

7 so by fiat. The President does not have “unilateral power to change the text of duly enacted statutes.”

8 Clinton v. City of New York, 524 U.S. 417, 447 (1998).

9

76. Congress has spoken to reject the imposition of such funding restrictions, including

10 when it declined to enact Senate Bill 1842, “Protecting American Lives Act,” introduced in July 2015

11 by then-Senator Attorney General Jeff Sessions. The bill would in part have expanded Section 1373 to

12 deprive jurisdictions having “in effect a statute, policy, or practice that prohibits law enforcement

13 officers of the State, or of a political subdivision of the State, from assisting or cooperating with

14 Federal immigration law enforcement in the course of carrying out the officers’ routine law

15 enforcement duties” of “any . . . law enforcement or Department of Homeland Security grant.” S.

16 1842, 114th Cong. § 3 (2015). Senate Bill 1842 did not make it out of committee, nor did the identical

17 House of Representatives Bill 3437. Where the President “takes measures incompatible with

18 the expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube

19 Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

20

77. By imposing conditions or limitations on federal spending without express statutory

21 authority, the Executive Order also unlawfully exceeds the President’s powers under other provisions

22 of the Constitution that establish the separation of powers among the branches of our government,

23 including: (i) the President’s obligation to “take Care that the Laws be faithfully executed,” U.S.

24 Const. art. II, § 3, cl. 5 (Take Care Clause), and (ii) the limitation that Congressional enactments must

25 “be presented to the President of the United States,” who then may sign that enactment or veto it, but

26 has no power to merely revise it, either upon presentment or after enactment, U.S. Const. art. I, § 7,

27 cls. 2-3 (Presentment Clause).

28 //

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1

ii. Spending Clause and Tenth Amendment

2

78. Further, the Funding Restriction purports to exercise Spending Power in ways that even

3 Congress could not.

4

79. The Funding Restriction violates the Spending Clause by imposing new funding

5 conditions on existing appropriations of federal funds. “[I]f Congress intends to impose a condition on

6 the grant of federal moneys, it must do so unambiguously,” in advance. Pennhurst, 451 U.S. at 17.

7 “The legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the

8 State voluntarily and knowingly accepts” Congress’s conditions. Id. “There can, of course, be no

9 knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of

10 it.” Id.

11

80. The Funding Restriction also violates the Spending Clause by imposing funding

12 conditions that are not germane to the purpose of the funds. “[T]he imposition of conditions under the

13 spending power” must be “germane” or “related” to the purpose of federal funding. South Dakota v.

14 Dole, 483 U.S. 203, 208-09 & n.3 (1987); see also Massachusetts v. United States, 435 U.S. 444, 461

15 (1978). Here, the Funding Restriction conditions eligibility for federal funding on compliance with

16 Section 1373, without regard for whether Section 1373 is germane to any federal funds at issue. In

17 fact, the Funding Restriction specifically exempts those federal funds—funds “deemed necessary for

18 law enforcement purposes”—that might arguably be germane to Section 1373.

19

81. The Funding Restriction also imposes conditions so severe that they “cross[] the line

20 distinguishing encouragement from coercion.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

21 2603 (2012) (opinion of Roberts, C.J.); New York v. United States, 505 U.S. 144, 175 (1992). The

22 Funding Restriction “is much more than ‘relatively mild encouragement’—it is a gun to the head.”

23 Sebelius, 132 S. Ct. at 2604 (opinion of Roberts, C.J.). The Funding Restriction threatens a substantial

24 percentage of San Francisco’s overall budget—approximately 13% of its total annual operating

25 budget, even without considering federal multi-year grants. Threatened funds include the entire

26 funding stream for programs, such as Medicaid, that are critical to the lives of San Francisco’s

27 residents. Threats of this magnitude, and to such critical programs, constitute “economic dragooning

28 that leaves the States with no real option but to acquiesce” to federal dictates. Id. at 2605.

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1

82. Finally, because Defendants interpret Section 1373 to require jurisdictions to comply

2 with immigration detainers, the Funding Restriction imposes a new funding condition that requires

3 jurisdictions to act unconstitutionally. Under the Fourth Amendment, detention of an individual must

4 be supported by a determination of probable cause. See Morales v. Chadbourne, 793 F.3d 208, 215–17

5 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014).

6 Requiring state and local governments (including San Francisco) to establish blanket policies of

7 compliance with immigration detainers could thus cause them to violate the Fourth Amendment. But

8 Congress’s Spending Power “may not be used to induce the States to engage in activities that would

9 themselves be unconstitutional.” Dole, 483 U.S. at 210.

10

83. This concern is heightened by the fact that state and local governments, including

11 San Francisco, generally lack authority to make warrantless arrests under the Federal government’s

12 civil immigration laws. See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). It is further

13 heightened by the prospect that “ICE’s issuance of detainers that seek to detain individuals without a

14 warrant goes beyond its statutory authority to make warrantless arrests.” Moreno v. Napolitano, No.

15 11-C-5452, 2016 WL 5720465, at *8 (N.D. Ill. Sept. 30, 2016).

16

84. For all these reasons, the Funding Restriction violates the Constitution’s separation of

17 powers (and, in particular, the Constitution’s grant of legislative power to Congress in Article I,

18 Section 1); the Spending Clause of Article I, Section 8; and the Tenth Amendment.

19

b. The Executive Order Enforcement Directive Is Unconstitutional

20

85. The Executive Order’s Enforcement Directive violates the Tenth Amendment. The

21 Enforcement Directive commandeers state and local governments by, inter alia, compelling them to

22 enforce federal law under threat of legal action.

23

86. The Enforcement Directive mandates that “[t]he Attorney General shall take

24 appropriate enforcement action against any entity that violates 8 U.S.C. 1373.” Executive Order at

25 8801. As discussed above, Defendants interpret Section 1373 to require jurisdictions to comply with

26 immigration detainers.

27

87. The Enforcement Directive also mandates “enforcement action against any entity

28 that . . . has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

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1 law.” Executive Order at 8801. As discussed above, Defendants interpret a state or local government’s

2 decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or

3 hinders the enforcement of Federal law.”

4

88. The Enforcement Directive thus mandates that the Attorney General take enforcement

5 action against state and local governments that do not detain individuals at the behest of the Federal

6 government.

7

89. Compelling state and local governments to detain individuals at the behest of the

8 Federal government violates the Tenth Amendment. “[T]he Federal Government may not compel the

9 States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United

10 States, 521 U.S. 898, 925 (1997). To “command state or local officials to assist in the implementation

11 of federal law” is to engage in impermissible commandeering. Id. at 927.

12

B. Community Injury

13

90. The Executive Order fosters an atmosphere of fear and distrust between undocumented

14 immigrants and local government officials in San Francisco. Its sweeping terms, combined with recent

15 ICE activity in San Francisco, and compounded by the Trump administration’s statements about

16 immigration enforcement, have generated a maelstrom of fear and confusion that San Francisco

17 agencies have had to move quickly to contain.

18

91. The Executive Order is designed to—and does—create public confusion about whether

19 San Francisco is and will remain a Sanctuary City, and what that means.

20

92. San Francisco has been forced to spend resources to counteract the effect of the

21 Executive Order. Since the Executive Order issued, San Francisco officials and employees have

22 responded to questions from San Francisco departments, non-profit partners, and members of the

23 public about topics such as whether the Executive Order modifies ICE’s authority to enter public

24 facilities, jails, and residences; whether individuals’ personal identifying information on applications

25 for benefit programs remains protected; and whether the Executive Order changes the way

26 San Francisco law enforcement officers interact with ICE. San Francisco departments have held

27 numerous meetings discussing the impact of the Executive Order and have developed new educational

28 materials about San Francisco Chapters 12H and 12I.

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1

93. Given the Executive Order’s broad language, even San Francisco’s extensive and

2 ongoing efforts to offer clear answers leave the public far from reassured.

3

94. By heightening undocumented immigrants’ concerns that any interaction with

4 San Francisco officials will lead to their information being turned over to ICE, the Executive Order

5 discourages undocumented immigrants from reporting crimes, seeking public health services, and

6 otherwise engaging with San Francisco programs and services. This threat harms public safety, public

7 health, and San Francisco’s ability to act in what San Francisco has determined to be the best interest

8 of its residents, consistent with federal and state law.

9

95. The Executive Order undermines San Francisco’s ability to provide critical services not

10 just to undocumented immigrants, but to all residents. When witnesses and crime victims will not talk

11 to the police, law enforcement suffers and the entire community is less safe. When children are not

12 vaccinated or the sick are not treated for communicable diseases, illness spreads throughout the

13 community.

14

96. As a result, the Executive Order causes the very harms San Francisco’s Sanctuary City

15 laws were designed to prevent. The Executive Order destroys rather than “foster[s] respect and trust

16 between law enforcement and residents,” wastes rather than “protect[s] limited local resources,” and

17 discourages rather than “encourage[s] cooperation between residents and City officials, including

18 especially law enforcement and public health officers and employees.” S.F. Admin. Code § 12I.1.

19

C. Budgetary Injury

20

1. San Francisco Relies On Federal Funding For Essential Public Services.

21

97. San Francisco is home to about 865,000 residents and has a total daytime population of

22 about 1,250,000. People who live in, work in or visit San Francisco rely on—in addition to other

23 public services—law enforcement provided by the San Francisco Police Department; public

24 infrastructure projects such as roads, bridges and public transit; and the availability of high quality

25 emergency care from San Francisco General Hospital. Residents also rely on public health programs

26 such as Medi-Cal and public assistance programs like CalWORKS. While San Francisco has

27 benefitted from a recent economic boom, over 12% of San Franciscans live in poverty, and depend on

28 public assistance to make ends meet and put food on the table.

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1

98. San Francisco contributes disproportionately to national economic growth and job

2 creation. Between 2010 and 2015, San Francisco ranked second among all U.S. counties in percentage

3 change in employment, generating over 125,000 new jobs, a growth rate of 28%. A significant portion

4 of this growth has been in the technology sector, a source of high wage jobs with important multiplier

5 effects and potential for future growth.

6

99. The State of California, including San Francisco, pays more to the Federal government

7 in taxes than it receives in federal spending. In 2014, California residents and businesses paid a total of

8 $369.2 billion in federal business and personal income, estate, gift, and excise taxes to the Internal

9 Revenue Services and were the beneficiaries of $355.8 billion in federal expenditures. California

10 ranked 38th among states in the ratio of federal spending to collections.

11

100. In turn, San Francisco relies on federal funding to provide essential services and build

12 and maintain public infrastructure projects.

13

101. San Francisco budgets by a fiscal year that runs from July 1 to June 30. The current

14 fiscal year began July 1, 2016, and will end June 30, 2017 (“FY16-17”). The next fiscal year will run

15 from July 1, 2017 to June 30, 2018 (“FY17-18”).

16

102. San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in

17 federal funds. This is approximately 13% of the total annual operating budget.

18

103. On top of the federal funds allocated in the annual operating budget, San Francisco

19 expects to receive an additional $800 million in federal multi-year grants, largely for public

20 infrastructure projects.

21

104. The programs, projects, and services described below are just a few examples of how

22 San Francisco uses federal funds.

23

a. Human Services Agency

24

105. San Francisco’s Human Services Agency (“HSA”) provides critical services to

25 San Francisco’s most vulnerable residents. It works with over 200,000 residents each year to provide

26 needed nutrition assistance, income support, and child welfare services, among other support services.

27 Approximately one in four San Franciscans is a client of HSA. HSA also manages numerous programs

28 //

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1 that serve young children and their families, older adults, and individuals with disabilities. HSA relies

2 on federal funding to provide these services.

3

106. For example, the In-Home Supportive Services (“IHSS”) program assists about 23,000

4 low-income elderly, disabled, or blind San Franciscans to live safely in their own homes and

5 communities. For some recipients, the IHSS program reduces acute health care and institutional long-

6 term care costs that would otherwise be incurred by the state and Federal governments through Medi-

7 Cal. About 19,000 individuals work as independent providers for IHSS recipients. For FY16-17, the

8 County’s IHSS program is budgeted to receive approximately $64 million in federal funds, accounting

9 for nearly 40% of the program’s budget. Virtually all of these funds are provided as reimbursements.

10 This amount does not include the approximately $200 million of federal funds that the State of

11 California pays directly to independent IHSS providers.

12

107. HSA also provides financial assistance and services to San Francisco’s neediest

13 residents, including children and families living in poverty. For example, through California Work

14 Opportunity and Responsibility to Kids (CalWORKS), HSA provides financial assistance, family

15 stabilization, case management, vocational counseling, job readiness assistance, behavioral health

16 treatment, transportation, and other services designed to help parents of low-income families meet

17 welfare-to-work requirements, secure and retain employment, and become self-sufficient.

18 San Francisco’s CalWORKS program is budgeted to receive approximately $58 million in federal

19 funding in FY16-17, accounting for over 50% of the County’s CalWORKS and Welfare-to-Work

20 FY16-17 budget. Virtually all of these funds are provided as reimbursements.

21

108. HSA offers numerous other social services, including child welfare programs and

22 services, early childhood care and education services, adult protective services and a County Veteran’s

23 Service Office that helps veterans and their families receive benefits to which they are entitled.

24

109. In FY16-17, HSA expects to receive a total of approximately $286 million in federal

25 funding. This represents approximately 33% of its FY16-17 budget.

26

110. HSA directly employs nearly 2,000 employees. It also funds hundreds of additional

27 jobs through contracts to service providers. Loss of federal funds would threaten many of these jobs,

28 as well as the underlying services, that depend on HSA funds.

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1

b. Department of Public Health

2

111. The Zuckerberg San Francisco General Hospital (“ZSFGH”) is a licensed general acute

3 care hospital owned and operated by San Francisco. ZSFGH has 284 beds and provides a full

4 complement of inpatient, outpatient, emergency, skilled nursing, diagnostic, mental health, and

5 rehabilitation services for adults and children. ZSFGH is the largest safety net provider in

6 San Francisco and is the designated trauma center for the 1.5 million residents of San Francisco and

7 northern San Mateo County. In FY16-17, ZSFGH expects to receive approximately $450 million in

8 federal funding for Medi-Cal and Medicare patient services. This accounts for over half of the ZSFGH

9 FY16-17 budget of nearly $840 million. Virtually all of these funds are provided as reimbursements.

10

112. Laguna Honda Hospital provides a full range of skilled nursing services to adult

11 residents of San Francisco who are disabled or chronically ill, including specialized care for those with

12 wounds, head trauma, stroke, spinal cord and orthopedic injuries, HIV/AIDS, and dementia. In FY16-

13 17, Laguna Honda Hospital expects to receive approximately $160 million in federal funding for

14 Medi-Cal and Medicare patient services, accounting for nearly 60% of its budget. Virtually all of these

15 funds are provided as reimbursements.

16

113. The San Francisco Department of Public Health (“DPH”) also provides direct services

17 through its primary care clinics, HIV/AIDS health services, mental health and substance abuse

18 treatment, housing and homelessness assistance, maternal and child healthcare, and jail health

19 services.

20

114. Additionally, the DPH Population Health Division addresses public health concerns,

21 including consumer safety, health promotion, and disease prevention. DPH also monitors threats to

22 public health.

23

115. Overall, in FY16-17, DPH expects to receive approximately $800 million in federal

24 funding. This represents almost 40% of the Department’s FY16-17 budget.

25

116. DPH has approximately 6,800 full-time equivalent employees, and it funds hundreds of

26 additional jobs through contracts to service providers. Loss of federal funds would threaten many of

27 the thousands of jobs that depend on DPH funds.

28 //

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1

c. Department of Emergency Management

2

117. The Department of Emergency Management (“DEM”) leads San Francisco in planning,

3 preparedness, communication, response, and recovery for daily emergencies, large scale citywide

4 events, and major disasters. DEM is the vital link in emergency communication between the public

5 and first responders.

6

118. One of the programs DEM administers is the Bay Area Urban Areas Security Initiative

7 (“UASI”), which sustains and improves regional capacity to prevent, mitigate, respond to, and recover

8 from terrorist attacks and catastrophic disasters. UASI funds training exercises and regional

9 emergency management and disaster response. This program is funded entirely by federal funds.

10

119. In FY16-17, DEM anticipates receiving about $25 million in federal funding, mostly

11 supporting the UASI program. This represents nearly 30% of the Department’s FY16-17 budget.

12

d. San Francisco Municipal Transportation Agency’s Vehicle

13

Replacement Program

14

120. San Francisco Municipal Transportation Authority (“SFMTA”) operates over 1,000

15 vehicles across 75 transit lines, carrying on average 700,000 passengers each workday. Replacing and

16 rehabilitating vehicles as they near the end of their useful life helps avoid costly repairs and service

17 interruptions. Growing the vehicle fleet also alleviates overcrowding and enables the transit system to

18 carry more passengers.

19

121. Nearly 80% of SFMTA’s vehicle replacement and rehabilitation funding comes from

20 the Federal government. Based on the latest Metropolitan Transportation Commission’s

21 Transportation Improvement Program, which is a comprehensive spending plan for the Bay Area

22 region, SFMTA expects to receive over $500 million for this purpose from FY 2016-17 through FY

23 2019-20. These funds are subject to “Buy American” provisions. For example, San Francisco’s most

24 recently purchased light-rail vehicles are manufactured in Sacramento, California and New Flyer

25 trolley buses are manufactured in Minnesota. The funds are expected to replace the system’s

26 approximately 1,000 aging vehicles over the four-year period.

27 //

28 //

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1

D. Federal Funding Streams

2

122. San Francisco receives federal funds in the form of grants, as well as though payments

3 for entitlement programs. These entitlement programs include Medicaid and Medicare, Temporary

4 Assistance for Needy Families, Supplemental Nutrition Assistance Program, Foster Care, and various

5 child welfare programs. Undocumented immigrants are not eligible to receive benefits from most

6 entitlement programs. Approximately 80% of the federal funds budgeted for FY16-17 are for

7 entitlement programs.

8

123. San Francisco receives federal funds directly from the Federal government, as well as

9 indirectly through the State of California and other pass-through entities. For FY16-17,

10 San Francisco’s budget includes over $1.1 billion in pass-through funds, the vast majority of which is

11 passed through the State of California. President Trump has identified California as a possible

12 sanctuary jurisdiction. Because California does not prohibit voluntary communications about

13 immigration status, it should be deemed to comply with Section 1373. If Defendants nonetheless cut

14 off funds to California, this could result in the loss of pass-through funds to San Francisco.

15

124. San Francisco receives most federal funds—for both grants and entitlement programs—

16 as reimbursements. San Francisco is currently providing services and benefits that the Federal

17 government has agreed to reimburse. San Francisco is also building major transit expansions and other

18 public infrastructure projects, as well as running programs across a variety of San Francisco agencies,

19 based on the Federal governments’ commitment to pay for these projects and programs. The Executive

20 Order calls into question whether the Federal government will in fact reimburse San Francisco for

21 these funds.

22

125. Congress has established numerous conditions governing eligibility for federal funds.

23 For instance, to receive Medicaid funds, a state must create a state plan that includes assurances to the

24 Federal government that the state will provide specified types of care and that the state regulates health

25 insurance providers to ensure access to medical assistance, among many other requirements. 42 U.S.C.

26 § 1396(a).

27

126. In another example, the United States Department of Housing and Urban Development

28 Community Development Block Grants fund many projects to combat unlawful evictions, maintain

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1 stable housing occupancy and supply, and incentivize affordable unit construction. These grants

2 require the grantee to prepare a statement of community development objectives and projected use of

3 funds, provide a citizen participation plan, and certify other enumerated criteria. 42 U.S.C. § 5304.

4

127. No federal funds received by San Francisco have statutory conditions specifically

5 requiring compliance with Section 1373.

6

E. Coercive Effect Of The Executive Order

7

128. The Executive Order threatens not to pay San Francisco over $2 billion in federal funds

8 that is money already spent by San Francisco—money San Francisco is spending today and money

9 San Francisco has reasonably relied on receiving. As set forth in this Complaint, the Executive Order

10 is unconstitutional in numerous respects. Nonetheless, San Francisco currently faces the prospect of

11 sweeping cuts in necessary federal funding.

12

129. It would be catastrophic for San Francisco to lose all federal funds. It would not be

13 possible for San Francisco to backfill the loss of $1.2 billion with local revenue sources.

14

130. San Francisco’s reserves are insufficient to cover the loss of all federal funds.

15 San Francisco currently has contingency reserves of approximately $350 million, in a Rainy Day Fund

16 and a Stabilization Fund, which were created and funded over the last decade for the purpose of

17 managing local tax revenue volatility created by economic conditions. These reserve levels, totaling

18 less than 8% of general fund revenues, remain below levels recommended by the Government Finance

19 Officers Association for local governments and the 10% target established by San Francisco law.

20 There are restrictions on the use of these reserves, and even if entirely depleted, their levels would be

21 inadequate to cover a shortfall in federal funds for even a single year. To fully absorb the loss of all

22 federal funds, San Francisco would also have to suspend capital projects—causing significant job

23 loss—and make drastic service cuts in order to maintain a balanced budget, as it is legally required to

24 do.

25

131. Even a loss of 10% of annual federal funds would be calamitous for San Francisco. A

26 cut of $120 million would lead to severe public health and public safety impacts. San Francisco

27 currently has approximately 1,971 police officers, a level mandated by the Charter, but a $120 million

28 cut would likely require San Francisco to reduce that number significantly, with similar reductions in

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1 the number of firefighters. Capital programs would be postponed, resulting in lost jobs, and social

2 service programs would be reduced or eliminated. General Fund Departments have identified specific

3 programs and services that they will need to cut if they must reduce their General Fund Support for

4 FY17-18 to help the Mayor’s Office balance the budget. These include, for example, services for

5 women that are domestic violence survivors, programming for low-income children and families, and

6 housing programs to support low-income residents.

7

132. The Executive Order’s threat to cut federal funds is manifestly coercive. This is why at

8 least one jurisdiction has already changed its policy about immigration detainers in response to the

9 Executive Order. The day after the Executive Order was issued, Miami-Dade County Mayor Carlos

10 Giménez instructed the county’s interim corrections director to “fully cooperate” with the Federal

11 government and comply with all immigration detainer requests, eliminating a previous requirement

12 that the Federal government reimburse detainer costs. “It’s really not worth the risk of losing millions

13 of dollars to the residents of Miami-Dade County in discretionary money from the feds,” said Mayor

14 Giménez. Ray Sanchez, Florida’s Largest County to Comply with Trump’s Sanctuary Crackdown,

15 CNN Politics (Jan. 27, 2017, 6:34 PM ET), http://www.cnn.com/2017/01/27/politics/miami-dade-

16 mayor-sanctuary-crackdown/. There is little doubt that is exactly what the President intends this

17 coercive effect with his promise to defund Sanctuary Cities.

18

F. Budget Impact of the Executive Order

19

133. For FY16-17, San Francisco’s annual operating budget is approximately $9.6 billion.

20 Of this, approximately $1.2 billion is money provided by the Federal government for entitlement

21 programs, grants, and contracts, and other items. For the vast majority of the federal funds received by

22 San Francisco, there is no nexus between the purpose of the funds and immigration enforcement. Only

23 a small percentage of all federal funds received by San Francisco relate to either immigration or law

24 enforcement.

25

134. The concern about losing federal funds is so acute that the Board of Supervisors has

26 established the Budget and Finance Federal Select Committee, a new committee that will consider

27 issues related to the possible loss of federal funds as a result of the Executive Order and other federal

28 action.

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1

135. San Francisco has already begun the seven-month process of adopting the annual

2 budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the

3 Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco

4 departments with detailed guidance on the preparation of departments’ budget requests. Most

5 San Francisco departments held public hearings on their budget proposals in January and February and

6 submitted their budget requests for the coming fiscal year to the Controller by February 21.

7 San Francisco law requires the Controller to submit a consolidated budget proposal to the Mayor by

8 March 1, the Mayor to submit a balanced budget to the Board of Supervisors by June 1, and the Board

9 of Supervisors to approve a balanced budget by August 1.

10

136. To meet the June 1 deadline, the Mayor must make fundamental budget decisions by

11 May 15, and input these decisions into San Francisco’s budget software by May 24. During the last

12 week of May, the Controller’s Office reconciles and confirms all financial calculations in the Mayor’s

13 proposed budget, while the Mayor’s Budget Office finalizes the narrative publication that accompanies

14 the proposed budget.

15

137. The budget for the fiscal year beginning July 1, 2017 will be approximately $10 billion,

16 approximately $5 billion of which is in San Francisco’s General Fund. The remainder of the budget is

17 comprised of self-supporting activities at San Francisco’s enterprise departments, which focus on city-

18 related business operations and include the Port, the Municipal Transportation Agency, the Airport,

19 the Public Utilities Commission, and others. The use of funds in these operations is legally restricted

20 and cannot be redirected to backfill a shortfall in the General Fund. Money in San Francisco’s General

21 Fund is used to support public services such as public health, human services, police and fire services,

22 and public works. Approximately $2 billion of General Fund money is legally dedicated for specific

23 purposes, leaving approximately $3 billion in discretionary funds.

24

138. One of the fundamental budget decisions the Mayor must make by May 15, 2017, is

25 whether to create a budget reserve to account for the possible loss of federal and state funds in the

26 coming fiscal year. This presents a Hobson’s choice. San Francisco, facing possible reductions, could

27 place funds into reserve at the beginning of the fiscal year, harming the public by reducing the amount

28 of money in San Francisco’s General Fund. Or San Francisco could budget based on the continued

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1 receipt of federal and state funds, knowing that cuts could come suddenly, outside of the budget

2 process.

3

139. If unanticipated cuts come mid-year, the General Fund will take an even bigger hit at

4 that time, as there will be less time to absorb the loss of funds. Depending on the nature of the cuts,

5 they could lead to immediate service cuts, layoffs, or cancellation of contracts and associated

6 penalties.

7

140. If current levels of uncertainty remain by May 15, 2017, the Mayor will be forced to

8 propose a federal and state budget reserve. The final amount of the reserve will depend on the Mayor’s

9 assessment of the amount of funding at risk and the likelihood that federal or state funds will be cut.

10 Money used to fund the reserve is money that will not be available for General Fund programs and

11 services.

12

141. A May 15, 2017, decision to set the reserve at a specified amount will have a real world

13 impact when the new fiscal year begins on July 1, 2017. Beginning on this date, funds allocated for the

14 reserve will sit in the reserve instead of being available for General Fund services and programs. Once

15 funds are placed in a federal and state budget reserve, they will remain there for the entire fiscal year

16 unless they are released in response to reliably detailed information about the timing and size of

17 federal or state funding cuts.

18

142. The Mayor must make a trade-off between putting money into a reserve and using it for

19 other San Francisco priorities, some of which are currently unfunded. For instance, the Department of

20 Homelessness and Supportive Housing needs an additional $19.5 million in the next two fiscal years

21 to make an impact in reducing homelessness in San Francisco. This money would fund a family

22 shelter expansion, youth housing subsidies, a resource center, and shelter maintenance and security. A

23 reserve would set money aside instead of using it for purposes like this.

24

143. Since the Executive Order issued, San Francisco has received inquiries from credit

25 rating agencies about the impact of the Executive Order on San Francisco’s finances. If credit rating

26 agencies downgrade their assessment of San Francisco, it will increase San Francisco’s borrowing

27 costs. The Executive Order imposes a “substantial contingent liability” to the extent that it

28 //

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1 “immediately and directly affects the borrowing power, financial strength, and fiscal planning” of

2 San Francisco. See Clinton v. City of N.Y., 524 U.S. 417, 430-31 (1998).

3

CAUSES OF ACTION

4

COUNT ONE

5 DECLARATORY RELIEF – SAN FRANCISCO LAW COMPLIES WITH 8 U.S.C. § 1373

6

144. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

7 if fully set forth herein.

8

145. San Francisco contends that its laws comply with Section 1373. San Francisco

9 Administrative Code Chapters 12H and 12I do not prohibit, or in any way restrict, any government

10 entity or official from sending to, or receiving from, immigration officials information regarding the

11 citizenship or immigration status, lawful or unlawful, of any individual.

12

146. Defendants contend that San Francisco’s laws do not comply with Section 1373.

13

147. An actual controversy presently exists between San Francisco and Defendants about

14 whether San Francisco’s laws comply with Section 1373.

15

148. A judicial determination resolving this controversy is necessary and appropriate at this

16 time.

17

COUNT TWO

18

TENTH AMENDMENT, SEPARATION OF POWERS, AND SPENDING CLAUSE – EXECUTIVE ORDER SECTION 9(A)’S FUNDING RESTRICTIONS ARE

19

UNCONSTITUTIONAL

20

149. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

21 if fully set forth herein.

22

150. Executive Order Section 2(c) states: “It is the policy of the executive branch to . . .

23 Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

24 except as mandated by law.” Executive Order at 8799.

25

151. Executive Order Section 9 states: “It is the policy of the executive branch to ensure, to

26 the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8

27 U.S.C. 1373.” Id. at 8801.

28 //

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1

152. Executive Order Section 9(a) contains a Funding Restriction stating: “In furtherance of

2 this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with

3 law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

4 jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law

5 enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to

6 designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary

7 jurisdiction.” Id.

8

153. The Funding Restriction violates the Tenth Amendment, the Spending Clause, and

9 Article I, sec. 1 of the United States Constitution by:

10

a. Exercising Spending Power that the Constitution grants to Congress;

11

b. Imposing new funding conditions on existing federal funds;

12

c. Imposing funding conditions not germane to the purpose of the funds;

13

d. Imposing funding conditions so severe as to coerce compliance; and

14

e. Imposing funding conditions that require jurisdictions to act unconstitutionally.

15

COUNT THREE

16

TENTH AMENDMENT – EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT

DIRECTIVE IS UNCONSTITUTIONAL

17

18

154. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as

19 if fully set forth herein.

20

155. Executive Order Section 9(a) contains an Enforcement Directive stating: “The Attorney

21 General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

22 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal

23 law.” Executive Order at 8801.

24

156. The Federal government has taken the position that a state or local jurisdiction that fails

25 to affirmatively assist federal immigration officials—by, for example, refusing to comply with a

26 detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations—hinders the

27 enforcement of federal law and violates Section 1373.

28 //

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1

157. Accordingly, the Enforcement Directive commandeers state and local governments,

2 violating Tenth Amendment to the United States Constitution by, inter alia, compelling them to

3 enforce a federal program by imprisoning individuals subject to removal at the request of the Federal

4 government when those individuals would otherwise be released from custody.

5

6

PRAYER FOR RELIEF

7

Wherefore, San Francisco prays that the Court grant the following relief:

8

San Francisco Laws Comply With Section 1373 (Count One)

9

1. Declare that San Francisco laws comply with Section 1373;

10

Executive Order Section 9(a)’s Funding Restriction Is Unconstitutional (Count Two)

11

2. Declare the Funding Restriction in Executive Order invalid;

12

3. Preliminarily and permanently enjoin Defendants from enforcing the Funding

13

Restriction in the Executive Order;

14

Executive Order Section 9(a)’s Enforcement Directive Is Unconstitutional (Count Three)

15

4. Declare the Enforcement Directive in Executive Order invalid;

16

5. Preliminarily and permanently enjoin unconstitutional applications of the Enforcement

17

Directive in Executive Order Section 9(a);

18

Other Relief

19

6. Award San Francisco reasonable costs and attorney’s fees; and

20 //

21 //

22 //

23 //

24 //

25 //

26 //

27 //

28 //

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1

7. Grant any other further relief that the Court deems fit and proper.

2 Dated: May 23, 2017

3

DENNIS J. HERRERA

4

City Attorney RONALD FLYNN

5

JESSE C. SMITH YVONNE R. MERÉ

6

MOLLIE M. LEE SARA J. EISENBERG

7

Deputy City Attorneys

8 By: /s/ Dennis J. Herrera

9

DENNIS J. HERRERA

City Attorney

10

11

By: /s/ Mollie M. Lee

MOLLIE M. LEE

12

Deputy City Attorney

13

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO 14

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FILER’S ATTESTATION

2

I, Mollie M. Lee, am the ECF user whose identification and password are being used to file

3 this SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.

4 Pursuant to Civil Local Rule 5-1(i)(3), I hereby attest that the other above-named signatories concur in

5 this filing.

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Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 38 of 53
EXHIBIT 1

San Francisco Administrative Code Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 39 of 53
CHAPTER 12H: IMMIGRATION STATUS

Sec. 12H.1. Sec. 12H.2. Sec. 12H.3. Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; amended by Ord. 228-09, File No. 091032, App. 10-28-2009; Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
SEC. 12H.2-1. [REPEALED.]
(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY

EMPLOYEES. Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 40 of 53
The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)
SEC. 12H.4. ENFORCEMENT.
The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.
In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.6. SEVERABILITY.
If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 41 of 53
EXHIBIT 2

San Francisco Administrative Code Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 42 of 53
CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.
The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer - Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.
Given that civil immigration detainers are issued by immigration officers without judicial oversight, and the regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance, there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE "Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *10-12 (N.D. Ill. filed May 5, 2014).)

On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-ComCma.sTehe3:A1t7to-rcnve-y0G0e4n8e5ra-Wl clHarOifiedDthoactuSm-Ceonmtm10d5id noFtilreedqu0ir5e /s2ta3t/e1o7r loPcaalglaew4e3nfoofrc5e3ment officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.
According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.
The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.
The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.
In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.
First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions about local law enforcement's liability for constitutional violations if any person is overdetained when immigration agents are unable to be present at the time of the person's release from local custody.
Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.
The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.
The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.
In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with

immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcementCisacsreitic3a:l1t7o-icnvve-0st0ig4a8tin5g-WanHdOprosDecouctiungmcerinmte1s0. W5 ithFoiulet dthe05co/2op3e/1ra7tionPoafgcerim4e4voicfti5m3s - like Mr. Figueroa and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.2. DEFINITIONS.
"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed.
(b) The individual has been acquitted of all criminal charges filed against him or her.
(c) The individual has served all the time required for his or her sentence.
(d) The individual has posted a bond, or has been released on his or her own recognizance.
(e) The individual has been referred to pre-trial diversion services.
(f) The individual is otherwise eligible for release under state or local law.
"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.
"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.
"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.
"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.
"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.
"Personal information" means any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information.
"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).
"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/1C7a/2s0e163) :17-cv-00485-WHO Document 105 Filed 05/23/17 Page 45 of 53
(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.
(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and
(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a Violent Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.
In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.
This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.
(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.
(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:
(1) The individual either:
(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or
(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or
(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and
(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.
In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.
(e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.
(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/1C7a/2s0e163) :17-cv-00485-WHO Document 105 Filed 05/23/17 Page 46 of 53
(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.4. PURPOSE OF THIS CHAPTER.
The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary notification of release of individuals, transmission of personal information, and civil immigration documents based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.5. SEMIANNUAL REPORT.
By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.6. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

1. So in Ord. 204-13.

CODIFICATION NOTE

SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

In enacting and implementing this Chapter 12I the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it impCosainsgeo3n:i1ts7o-fcfvic-e0r0s 4an8d5-eWmpHloOyeesD, aoncuobmligeantito1n0fo5r brFeialechdo0f5w/2hi3c/h1i7t is Pliaabgleein4m7oonfey53damages to any person who claims that such breach proximately caused injury.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013) (Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.8. (Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.10. (Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.11. (Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 48 of 53
EXHIBIT 3

Case 3:17-cv-00485-WHO Document 105 Filed 05/23/17 Page 49 of 53
Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents
Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
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Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as ‘‘Secure Communities’’ referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017–02102 Filed 1–27–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 25, 2017.

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 Case 3:17-cv-00485-WHO Document 111 Filed 06/06/17 Page 1 of 31

1 CHAD A. READLER

Acting Assistant Attorney General 2 BRIAN STRETCH

3 United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487) 5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883 Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of

12 Homeland Security; JEFFERSON B.

SESSIONS, III, Attorney General of the 13 United States

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 CITY AND COUNTY OF SAN 19 FRANCISCO,

No. 3:17-cv-00485-WHO

20

Plaintiff,

v.

21

22 DONALD J. TRUMP, et al.,

23

Defendants.

24

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINT AND AUTHORITIES

Date: Time:

July 19, 2017 2:00 p.m.

25

26

27

28

Motion to Dismiss; Memorandum No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 111 Filed 06/06/17 Page 2 of 31

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES...........................................................................................................ii

4 NOTICE OF MOTION AND MOTION TO DISMISS.................................................................. 1

5 MEMORANDUM OF POINTS AND AUTHORITIES................................................................. 1

6 INTRODUCTION ........................................................................................................................... 1

7 ISSUES PRESENTED .................................................................................................................... 3

8 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 4

9

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 4

10

II. Executive Order 13,768........................................................................................... 6

11

III. The AG Memorandum ............................................................................................ 7

12 PROCEDURAL BACKGROUND ................................................................................................. 8

13 ARGUMENT .................................................................................................................................. 8

14

I. Plaintiff Lacks Standing and Its Claims Are Unripe ............................................. 10

15

II. Plaintiff Fails to State a Viable Claim for Declaratory Relief Regarding Its Compliance with Section 1373 ....................................................... 11

16

III. Plaintiff Fails to State Any Viable Claim Regarding the

17

Executive Order, Which Is an Internal Directive and Does Not Directly Affect the Plaintiff................................................................... 12

18

IV. Plaintiff Fails to State Any Viable Claim Regarding the Grant

19

Eligibility Provision, as Elucidated by the AG Memorandum.............................. 13

20

A. Plaintiff Fails to State a Viable Claim that the Grant Eligibility Provision Violates the Separation of Powers ........................... 14

21

B. Plaintiff Fails to State a Viable Claim that the Grant

22

Eligibility Provision Exceeds the Spending Power ................................... 16

23

C. Plaintiff Fails to State a Viable Claim that the Grant Eligibility Provision Violates the Tenth Amendment ............................... 21

24

V. Plaintiff’s Claim that the “Appropriate Enforcement Action” Provision

25

of Section 9(a) Violates the Tenth Amendment Is Non-Justiciable ...................... 22

26 CONCLUSION ............................................................................................................................. 24

27

28

Motion to Dismiss; Memorandum

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1

TABLE OF AUTHORITIES

2 CONSTITUION
3 4 U.S. Const. Art. I, § 8, cl. 1 ...................................................................................................... 14, 16

5 U.S. Const., Art. III, § 2 ................................................................................................................... 8

6 U.S. Const. art. III, § 2, cl. 1........................................................................................................... 22

7 CASES
8 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................................................................. 10, 23, 24
9 Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR,
10 2012 WL 5915124 (N.D. Cal. Nov. 26, 2012)............................................................................. 2

11 Alexander v. Sandoval, 532 U.S. 275 (2001) ................................................................................. 11

12 Am. Fed’n of State, Cty. & Mun. Employees v. Scott, 717 F.3d 851 (11th Cir. 2013).............................................................................................. 14, 15
13 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. Feb. 2, 2017)..................................... 4
14 Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) ............................................... 4, 24
15 Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................. 9
16 Ashcroft v. Mattis, 431 U.S. 171 (1977)......................................................................................... 12
17 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 18
18 Bigelow v. Virginia, 421 U.S. 809 (1975) ...................................................................................... 23
19 Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002)................... 7, 8
20 Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
21 288 F.3d 414 (9th Cir. 2002)...................................................................................................... 22

22 Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156 (9th Cir. 2016) ............................. 9

23 Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995)................ 12

24 Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017).................................................................... 14, 15, 17
25 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989) ................................................ 14, 15
26 Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985) ................................................. 23
27 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ........................................................... 21
28

Motion to Dismiss; Memorandum

ii

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1 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .................................................................... 23

2 Golden v. Zwickler, 394 U.S. 103 (1969)....................................................................................... 11

3 Harris Cty. Texas v. MERSCORP Inc., 791 F.3d 545 (5th Cir. 2015) ........................................... 11

4 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998)...................................... 22

5 In re Apple Iphone Antitrust Litig., 846 F.3d 313 (9th Cir. 2017) ................................................... 9

6 In re ATM Fee Antitrust Litig., No. C 04-2676 CRB, 2010 WL 2557519 (N.D. Cal. June 21, 2010) ............................................................................................................ 9
7 Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979) .......................... 12
8 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................... 9
9 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 18
10 Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988) ........................................................ 2
11 Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427
12 (N.D. Cal. Oct. 10, 2012) ........................................................................................................... 11

13 N.Y. v. United States, 505 U.S. 144 (1992) ........................................................................ 10, 18, 21

14 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ......................................... 10, 19, 21

15 Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) ........................... 22

16 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001)............................................................................... 9

17 NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989) ............................................................................. 14, 15

18 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)................................................... 16

19 Renne v. Geary, 501 U.S. 312 (1991)............................................................................................... 9

20 Robinson v. United States, 586 F.3d 683 (9th Cir. 2009)................................................................. 9

21 South Dakota v. Dole, 483 U.S. 203 (1987) ............................................................................ passim

22 Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) .......................................... 23

23 State of Cal. v. United States, 104 F.3d 1086 (9th Cir. 1997) ........................................................ 19

24 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................................ 9, 23, 24

25 Strong v. Ford, 108 F.3d 1386 (9th Cir. 1997)............................................................................... 11

26 Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995)............................. 7

27 Texas v. United States, 523 U.S. 296 (1998)............................................................................ 23, 24

28 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .............................................................. 21

Motion to Dismiss; Memorandum

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1
U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999) .................................... 23 2
United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ........................................................... 24 3
United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ................................................... 12 4
United States v. Salerno, 481 U.S. 739 (1987)........................................................................passim 5
United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ..................................................... 24 6
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) .............. 14 7
White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998)............................................................... 11 8
Whitmore v. Arkansas, 495 U.S. 149 (1990) ...................................................................... 10, 23, 24 9
Winter v. California Med. Review, Inc., 900 F.2d 1322 (9th Cir. 1989) ........................................ 24 10

11 STATUTES
12 8 U.S.C. §§ 1101 et seq. ................................................................................................................... 4
13 8 U.S.C. § 1103(c)(1) ....................................................................................................................... 7
14 8 U.S.C. § 1357(g)(1) ....................................................................................................................... 5
15 8 U.S.C. § 1357(g)(10)(B)................................................................................................................ 5
16
8 U.S.C. § 1373 ....................................................................................................................... passim 17
28 U.S.C. § 512 ............................................................................................................................ 2, 7 18
28 U.S.C. § 1331 ............................................................................................................................ 11 19
28 U.S.C. § 1346 ............................................................................................................................ 11 20
28 U.S.C. §§ 2201-2202 ................................................................................................................. 11 21
42 U.S.C. § 3712(a) ........................................................................................................................ 15 22
42 U.S.C. § 3752(a)(5)(D).............................................................................................................. 15 23
Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996) .............................................. 5 24

25 REGULATIONS 26 28 C.F.R. § 0.5(c) ......................................................................................................................... 2, 7 27

28

Motion to Dismiss; Memorandum

iv

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1 EXECUTIVE ORDERS

2 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012)...................................................................... 4

3 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016)...................................................................... 4

4 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim

5

OTHER AUTHORITIES 6

7 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017)................passim

8

Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et al.,

9

Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017) ............... 5

10

Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice

11

Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016)................................................................................................. 5

12 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the

13

Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000)............................................ 7

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Motion to Dismiss; Memorandum

v

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1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on Wednesday, July 19, 2017, at 2:00 p.m., or as soon

3 thereafter as counsel may be heard, before The Honorable William H. Orrick, in Courtroom 2,

4 17th Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California,

5 the defendants will move, and hereby do move, for dismissal of this action under Rules 12(b)(1)

6 and 12(b)(6) of the Federal Rules of Civil Procedure. This motion is based on the following

7 Memorandum of Points and Authorities, the evidence and records on file in this action, and any

8 other written or oral evidence or argument that may be presented at or before the time this motion

9 is heard by the Court.1

10

MEMORANDUM OF POINTS AND AUTHORITIES

11

INTRODUCTION

12

On January 25, 2017, the President signed Executive Order 13,768 for the declared

13 purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to

14 enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.

15 Reg. 8,799 (Jan. 30, 2017). Section 9 of the Order, which is the subject of this litigation, directs

16 the Attorney General and the Secretary of Homeland Security (“Secretary”), “in their discretion

17 and to the extent consistent with law, [to] ensure that jurisdictions that willfully refuse to comply

18 with 8 U.S.C. 1373 . . . are not eligible to receive Federal grants, except as deemed necessary for

19 law enforcement purposes . . . .” Id. § 9(a). Section 9 also instructs the Attorney General to take

20 “appropriate enforcement action” against any entity that violates Section 1373 or has a statute or

21 policy that “prevents or hinders the enforcement of Federal law.” Id. Section 1373 provides,

22 among other things, that no government entity or official may prohibit or restrict the sending or

23 receiving of information regarding the citizenship or immigration status of any individual to

24 federal immigration authorities. 8 U.S.C. § 1373(a).

25

26

1 Plaintiff names “DOES 1-100” as defendants in this matter but does not identify those

27 individuals or specify the capacity in which they are being sued (Doc. 105 ¶ 18). Undersigned counsel does not purport to represent those individuals, and claims against them are not at issue in

28 this motion to dismiss. Moreover, because those individuals have not been named or served, granting this motion would resolve this litigation in its entirety.

Motion to Dismiss; Memorandum No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 111 Filed 06/06/17 Page 8 of 31

1

The Order is a presidential directive, directed to the Attorney General, the Secretary, and

2 other federal officials. It does not purport to alter the existing requirements of Section 1373 (or

3 any other federal law), to impose new burdens on state or local jurisdictions, or to expand the

4 legal authority of the Attorney General or the Secretary. Rather, it simply announces the policy

5 of the Executive Branch and directs the Attorney General and the Secretary, in their discretion

6 and consistent with their existing legal authority, to ensure that jurisdictions that willfully refuse

7 to comply with Section 1373 not be eligible to receive federal grants and to take enforcement

8 action as appropriate. Id.

9

The Attorney General, in the exercise of his discretion under Section 9(a) of the Order and

10 his overall responsibility to advise executive department heads, see 28 U.S.C. § 512; 28 C.F.R.

11 § 0.5(c), has issued authoritative, binding guidance regarding the implementation of Section 9(a).

12 See Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) (Attachment

13 1 hereto) (hereinafter AG Mem.).2 Among other things, the AG Memorandum provides (1) that

14 the grant eligibility provision in Section 9(a) applies “solely to federal grants administered by the

15 Department of Justice or the Department of Homeland Security [“DHS”], and not to other sources

16 of federal funding[,]” (2) that the Department of Justice (“DOJ”) will require jurisdictions

17 applying for certain DOJ-administered grants “to certify their compliance with federal law,

18 including 8 U.S.C. § 1373,” (3) that the certification will be required only where the agency is

19 “statutorily authorized to impose such a condition,” (4) that “[a]ll grantees will receive notice of

20 their obligation to comply with section 1373,” and (5) that only “jurisdiction[s] that fail[] to

21 certify compliance with section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2.

22

23 2 This Court can freely consider the AG Memorandum on this motion to dismiss without
24 affecting the nature of the motion. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th
25 Cir. 1988) (“[I]t is proper for the district court to take judicial notice of matters of public record outside the pleadings and consider them for purposes of the motion to dismiss.”) (internal
26 quotation marks omitted); Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR, 2012 WL 5915124, at *2 (N.D. Cal. Nov. 26, 2012) (stating that court “may consider matter that is properly
27 the subject of judicial notice, such as court filings and other public records, without converting a
motion to dismiss into one for summary judgment”). 28

Motion to Dismiss; Memorandum

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1

The AG Memorandum further establishes that San Francisco lacks standing in this case

2 and that its claims are unripe; thus, all of plaintiff’s claims herein should be dismissed for lack of

3 jurisdiction. To the extent the Court addresses plaintiff’s individual claims, each claim must be

4 dismissed under either Rule 12(b)(6) or 12(b)(1) of the Federal Rules of Civil Procedure,

5 particularly in light of the AG Memorandum. Given that the grant eligibility provision in Section

6 9(a) will apply only to certain grants administered by DOJ and DHS and only where the imposi-

7 tion of such a condition is statutorily authorized, and given that grantees will be asked to certify

8 their compliance with 8 U.S.C. § 1373 as part of the grant process, the City cannot state viable

9 claims that the grant eligibility provision violates the Separation of Powers, the Spending Clause,

10 or the Tenth Amendment (Doc. 105 ¶¶ 149-153). This is especially true given that these claims

11 are facial challenges to an Executive Order, and plaintiff cannot show that “no set of circum-

12 stances exists under which the [Order] would be valid.” United States v. Salerno, 481 U.S. 739,

13 745 (1987).

14

San Francisco has also failed to state a claim on which relief can be granted regarding its

15 compliance with Section 1373 (Doc. 105 ¶¶ 144-148) because the City identifies no cause of

16 action authorizing such relief and a ruling on that subject would constitute a prohibited advisory

17 opinion. And finally, given that no action has been taken against San Francisco pursuant to the

18 provision in the Executive Order instructing the Attorney General to take “appropriate

19 enforcement action” against certain entities, the Court lacks subject matter jurisdiction over

20 plaintiff’s challenge to that provision under the Tenth Amendment (id. ¶¶ 154-157).

21

Accordingly, the Court should dismiss plaintiff’s Second Amended Complaint for failure

22 to state a claim on which relief can be granted and for lack of subject matter jurisdiction.

23

ISSUES PRESENTED

24

1. Whether the plaintiff has established its standing and the ripeness of its claims.

25

2. Whether the plaintiff has stated a viable claim for declaratory relief regarding its

26 compliance with 8 U.S.C. § 1373.

27

3. Whether the plaintiff can challenge an Executive Order that constitutes only an internal

28 Executive Branch directive and has no direct effect on the plaintiff.

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1

4. Whether the plaintiff has stated a viable claim that the grant eligibility provision in

2 Section 9(a) of the Executive Order violates the Separation of Powers.

3

5. Whether the plaintiff has stated a viable claim that the grant eligibility provision

4 exceeds the Spending Power.

5

6. Whether the plaintiff has stated a viable claim that the grant eligibility provision

6 violates the Tenth Amendment.

7

7. Whether the Court has subject matter jurisdiction over plaintiff’s claim that the

8 “appropriate enforcement action” provision in Section 9(a) violates the Tenth Amendment.

9

STATUTORY AND ADMINISTRATIVE BACKGROUND

10 I.

Broad Executive Discretion in Enforcement of Immigration Law

11

“The Government of the United States has broad, undoubted power over the subject of

12 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

13 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

14 Congress granted the Executive Branch significant authority to control the entry, movement, and

15 other conduct of foreign nationals in the United States. Under the INA, the Department of Home-

16 land Security, the Department of Justice, and other agencies of the Executive Branch administer

17 and enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise

18 considerable executive discretion to direct enforcement pursuant to federal policy objectives. See

19 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. Feb. 2, 2017) (“By necessity, the

20 federal statutory and regulatory scheme, as well as federal case law, vest the Executive with very

21 broad discretion to determine enforcement priorities.”). Several Presidents have exercised this

22 discretion by Executive Order, and they have done so in differing ways, reflecting their individual

23 judgments as to how best to take care that the laws of the United States be faithfully executed.

24 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) (“Suspending Entry Into the

25 United States of Persons Contributing to the Situation in Libya”); Exec. Order No. 13,608, 77

26 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of Foreign Sanctions Evaders

27 With Respect to Iran and Syria”). The Secretary has also consistently exercised similar executive

28 discretion in the enforcement of federal immigration law. See, e.g., Mem. from John Kelly, Sec’y

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1 of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et

2 al., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017).3

3

The INA contains a number of provisions regarding the involvement of state and local

4 authorities in the enforcement of immigration law. For example, Section 287(g) of the INA

5 authorizes the Secretary to enter into written agreements with a state or local government under

6 which officers of such government may “perform a function of an immigration officer in relation

7 to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C.

8 § 1357(g)(1). Likewise, the INA provides for cooperation with DHS in the “identification,

9 apprehension, detention, or removal of aliens not lawfully present in the United States,” even

10 without a formal cooperation agreement. Id. § 1357(g)(10)(B). Another provision, 8 U.S.C.

11 § 1373, ensures the sharing of information between federal and state actors:

12

Notwithstanding any other provision of Federal, State, or local law, a Federal,

13

State, or local government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to, or receiving from,

14

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual. 15
Id. § 1373(a); see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996).

16 Section 1373 also proscribes prohibiting or restricting any government entity from “maintaining”

17 information regarding the immigration status of any individual. 8 U.S.C. § 1373(b).

18 Well before the issuance of Executive Order 13,768, the compliance of state and local

19 governments with Section 1373 has been of interest to federal agencies because such govern-

20 ments are recipients of federal grants. For example, the Inspector General of the Department of

21 Justice issued a memorandum on May 31, 2016, as plaintiff notes (Doc. 105 ¶ 43), describing a

22 concern that several state and local governments receiving federal grants were not complying

23 with 8 U.S.C. § 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,

24 Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of Allegations of

25 Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

26

27

3 This memorandum is available at https://www.dhs.gov/ sites/ default/ files/

28

publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-NationalInterest.pdf.

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1 https://oig.justice.gov/reports/2016/1607.pdf. Although the Inspector General observed that some

2 applications of certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the

3 report nevertheless noted that “no one at DHS . . . has made a formal legal determination whether

4 certain state and local laws or policies violate Section 1373, and we are unaware of any

5 Department of Justice decision in that regard.” Id. at 8 n.12.

6 II. Executive Order 13,768

7

The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

8 the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

9 “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

10 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

11 immigration law within the United States, and it instructs certain federal officials to use “all

12 lawful means” to enforce those laws. See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

13

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

14 who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

15 Reg. at 8,800. Several provisions of the Order instruct officials to take actions directing future

16 conduct, including instructions to promulgate certain regulations within one year, to take “all

17 appropriate action” to hire additional immigration officers, to seek agreements with state and

18 local officials under Section 287(g) of the INA (referred to above), to develop a program to

19 ensure adequate prosecution of criminal immigration offenses, and to establish an office to

20 provide certain services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11,

21 13, 82 Fed. Reg. at 8,799-802. Throughout, the Order specifies that federal officials are to take

22 these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14,

23 17, 18(b), 82 Fed. Reg. at 8,799-802.

24

Section 9 of the Executive Order provides that “[i]t is the policy of the executive branch to

25 ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

26 comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

27

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

28

Security], in their discretion and to the extent consistent with law, shall ensure that

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1

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

dictions) are not eligible to receive Federal grants, except as deemed necessary for

2

law enforcement purposes by the Attorney General or the Secretary. The Secre-

3

tary has the authority to designate, in his discretion and to the extent consistent

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall

4

take appropriate enforcement action against any entity that violates 8 U.S.C. 1373,

or which has in effect a statute, policy, or practice that prevents or hinders the

5

enforcement of Federal law.

6 Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 also instructs the Director of the Office of

7 Management and Budget to “obtain and provide relevant and responsive information on all

8 Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c), 82 Fed.

9 Reg. at 8,801.

10 III. The AG Memorandum

11

On May 22, 2017, the Attorney General issued a Memorandum regarding the

12 implementation of Executive Order 13,768. See AG Mem. at 1. The Attorney General has a

13 statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and

14 to furnish formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). Also, although the

15 Secretary principally administers the immigration laws, the INA provides that “the determination

16 and ruling by the Attorney General with respect to all questions of law shall be controlling.”

17 8 U.S.C. § 1103(c)(1). By longstanding tradition and practice, the Attorney General’s legal

18 opinions are treated as authoritative by the heads of executive agencies. See, e.g., Tenaska

19 Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss,

20 Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52

21 Admin. L. Rev. 1303, 1319-20 (2000).

22

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

23 interpretation of Section 9(a) of the Executive Order. The Memorandum specifies that the Order

24 does not “purport to expand the existing statutory or constitutional authority of the Attorney

25 General and the Secretary of Homeland Security in any respect,” but rather instructs those

26 officials to take certain action, “to the extent consistent with the law.” AG Mem. at 2; see Bldg.

27 & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (noting that the

28 President is merely wielding his “supervisory authority over the Executive Branch” where he

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1 “directs his subordinates” to take certain action “but only ‘[t]o the extent permitted by law’”).

2 The AG Memorandum further clarifies that the grant eligibility provision in Section 9(a) is

3 limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants requiring the

4 applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as a condition

5 for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify compliance

6 with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the grant eligibility

7 provision. Id. In other words, the provision applies only where an applicant or grant recipient

8 has had the choice either to certify compliance with 8 U.S.C. § 1373 as an express condition of

9 eligibility to participate in a certain grant program, or to refuse to certify compliance and thereby

10 render itself ineligible to participate in the program. The AG Memorandum also makes clear that,

11 with respect to Section 1373 compliance conditions, DOJ and DHS may impose such conditions

12 only pursuant to the exercise of “existing statutory or constitutional authority,” and only where

13 “grantees will receive notice of their obligation to comply with section 1373.” AG Mem. at 2.

14 Lastly, the Attorney General states that, “[a]fter consultation with the Secretary of Homeland

15 Security, [he has] determined that, for purposes of enforcing the Executive Order, the term

16 ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8

17 U.S.C. 1373.’” Id.

18

PROCEDURAL BACKGROUND

19

San Francisco filed this action on January 31, 2017, followed by its Second Amended

20 Complaint on May 23 (Doc. 105). Plaintiff filed a motion for preliminary injunction against the

21 implementation of Section 9 of the Executive Order, which the Court granted on April 25, 2017

22 (Doc. 82). Defendants filed a motion for reconsideration or clarification of the preliminary

23 injunction on May 23, 2017 (Doc. 107), which remains pending.

24

ARGUMENT

25

A claim should be dismissed under Rule 12(b)(1) if the court lacks subject matter

26 jurisdiction to consider it. The jurisdiction of the federal courts is limited to “Cases” and

27 “Controversies.” U.S. Const., Art. III, § 2. “Jurisdiction is power to declare the law, and when it

28 ceases to exist, the only function remaining to the court is that of announcing the fact and

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1 dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Courts

2 should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the

3 record,” Renne v. Geary, 501 U.S. 312, 316 (1991), and “the party asserting subject matter

4 jurisdiction has the burden of proving its existence,” Robinson v. United States, 586 F.3d 683,

5 685 (9th Cir. 2009); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

6

Additionally, a claim should be dismissed under Rule 12(b)(6) of the Federal Rules of

7 Civil Procedure if it “fail[s] to state a claim upon which relief can be granted.” A motion under

8 Rule 12(b)(6) “tests the legal sufficiency” of a complaint. Navarro v. Block, 250 F.3d 729, 732

9 (9th Cir. 2001). On such a motion, the district court accepts all “plausible,” “well-pleaded”

10 factual allegations as true, In re Apple Iphone Antitrust Litig., 846 F.3d 313, 315 (9th Cir. 2017);

11 Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016), but need not

12 accept “a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

13 (2009). The complaint is subject to dismissal if it fails to “state a claim to relief that is plausible

14 on its face.” Id. “A complaint may be dismissed for failure to state a claim where the factual

15 allegations do not raise the right to relief above the speculative level.” In re ATM Fee Antitrust

16 Litig., No. C 04-2676 CRB, 2010 WL 2557519, at *4 (N.D. Cal. June 21, 2010).

17

Plaintiff’s Second Amended Complaint contains five claims: Count One alleges that San

18 Francisco’s laws comply with 8 U.S.C. § 1373; Count Two alleges that the grant eligibility

19 provision in Section 9(a) of the Executive Order violates the constitutional Separation of Powers,

20 the Spending Clause of Article I, and the Tenth Amendment; and Count Three alleges that the

21 provision in the Order requiring the Attorney General to take “appropriate enforcement action”

22 against certain entities also violates the Tenth Amendment. All of these claims should be

23 dismissed for lack of standing and ripeness under Rule 12(b)(1), as made even clearer by the AG

24 Memorandum. Also, all of plaintiff’s claims against the Executive Order should be dismissed

25 under Rule 12(b)(6) because the Order is only an internal Executive Branch directive with no

26 direct effect on the City.

27

Further, plaintiff’s first four claims should be dismissed for failure to state a claim on

28 which relief can be granted under Rule 12(b)(6), and the last claim should be dismissed for

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1 independent reasons under Rule 12(b)(1). In relation to the merits of Count One, Section 1373

2 contains no right of action to seek a declaration regarding a jurisdiction’s compliance with the

3 statute, and plaintiff has cited no other source for such a cause of action. Also, since the

4 Secretary of Homeland Security has not designated or threatened to designate San Francisco as a

5 “sanctuary jurisdiction” under Section 9(a), any judicial ruling on the City’s compliance with

6 Section 1373 would be an advisory opinion.

7

In relation to Count Two, the AG Memorandum makes clear that the grant eligibility

8 provision will be applied only where authorized by statute; that the limitations on the spending

9 power described in South Dakota v. Dole, 483 U.S. 203 (1987), will be followed; and that the

10 grant eligibility provision will not be used to “compel the States to enact or administer a federal

11 regulatory program” or to “act on the Federal Government’s behalf” in violation of the Tenth

12 Amendment. See N.Y. v. United States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v.

13 Sebelius, 132 S. Ct. 2566, 2627 (2012).

14

And in relation to Count Three, defendants have taken no “enforcement action” against

15 San Francisco under Section 9(a) and there is no indication that any such action is imminent, such

16 that the City lacks standing to challenge that provision in the Order and its challenge is not ripe.

17 I. Plaintiff Lacks Standing and Its Claims Are Unripe

18

Article III of the Constitution requires that a plaintiff have standing and that its claims be

19 ripe for judicial consideration. To have standing, the plaintiff must show that it has suffered

20 “concrete,” “palpable” injury, see Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), and, for the

21 claims to be ripe, the challenged enactment must have been “formalized and its effects felt in a

22 concrete way.” See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). As discussed in

23 Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order

24 of April 25, 2017, the AG Memorandum makes even clearer that these requirements are not

25 satisfied here and that, therefore, all of San Francisco’s claims must be dismissed for lack of

26 standing and ripeness (Doc. 107 at 8-12).

27

28

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1 II. Plaintiff Fails to State a Viable Claim for Declaratory Relief
Regarding Its Compliance with Section 1373 2
Count One in the Second Amended Complaint seeks a judicial declaration that San 3
Francisco’s laws comply with 8 U.S.C. § 1373 (Doc. 105 ¶¶ 144-148). The City does not, 4
however, identify a right of action, in Section 1373 or elsewhere, that would allow it to pursue 5
such declaratory relief, and, in any event, the declaration that plaintiff seeks would constitute a 6
prohibited advisory opinion. Thus, Count One does not plead a claim on which relief can be 7
granted, and the Court would lack jurisdiction to grant the declaration sought. 8
“To raise a claim in federal court, plaintiffs must demonstrate both that a federal court will 9
have jurisdiction over their claim, and also that they (the plaintiffs) have a right of action to 10
initiate that claim. In other words, establishing the court’s jurisdiction and the litigants’ right of 11
action are two requirements that must be satisfied independently.” Harris Cty. Texas v. 12
MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015); see Alexander v. Sandoval, 532 U.S. 275, 13
286-87 (2001) (absent statutory intent to create a cause of action, one “does not exist and courts 14
might not create one, no matter how desirable that may be as a policy matter”). The general 15
jurisdictional statutes that plaintiff cites, 28 U.S.C. §§ 1331 and 1346 (Doc. 105 ¶ 11), do not 16
create independent causes of action. See Strong v. Ford, 108 F.3d 1386 (9th Cir. 1997) 17
(unpublished); White v. Paulsen, 997 F. Supp. 1380, 1382 (E.D. Wash. 1998). Similarly, the 18
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (Doc. 105 ¶ 11), creates a certain remedy that 19
may be available to litigants, but does not itself create a cause of action. See, e.g., Muhammad v. 20
Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory 21
relief is not an independent cause of action or theory of recovery, only a remedy. The [Declara22
tory Judgment Act] does not itself confer federal subject-matter jurisdiction.”) (citation and 23
internal quotation marks omitted). 24
Moreover, because there is no live, concrete controversy regarding whether San Francisco 25
complies with Section 1373, any judicial ruling on that subject would constitute a prohibited 26
advisory opinion. See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“[T]he federal courts . . . do 27
not render advisory opinions. . . . This is as true of declaratory judgments as any other field.”). 28

Motion to Dismiss; Memorandum

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1 Plaintiff’s contention that an “actual controversy exists between San Francisco and Defendants

2 about whether [the City’s] laws comply with Section 1373” (Doc. 105 ¶ 147) is conclusory and

3 inaccurate. San Francisco does not allege that the Secretary has designated it or threatened to

4 designate it as a “sanctuary jurisdiction” pursuant to Section 9(a), nor that DOJ or DHS has

5 deprived it or threatened to deprive it of any federal funds thereunder. “For a declaratory

6 judgment to issue, there must be a dispute which calls, not for an advisory opinion upon a

7 hypothetical basis, but for an adjudication of present right upon established facts.” Ashcroft v.

8 Mattis, 431 U.S. 171, 172 (1977) (internal quotation marks omitted).

9 III. 10

Plaintiff Fails to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Directly Affect the Plaintiff

11

The Court should dismiss all of San Francisco’s challenges to Executive Order 13,768 –

12 counts two and three of the Second Amended Complaint – because the Order only directs internal

13 Executive Branch policy and does not directly affect the plaintiff. Courts in this Circuit have

14 distinguished between Executive Orders that only “implement policy as a product of executive

15 authority,” and those that effectuate an authority explicitly vested in the President through an act

16 of Congress. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 (N.D. Cal.

17 May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid Soc’y of

18 Alameda County v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979).

19

The former type of Executive Order does not carry the independent force of law; rather, it

20 serves only as an internal Executive Branch directive. The Executive Order in this action falls

21 into that category. This is even clearer in light of the AG Memorandum, which indicates that the

22 challenged provisions of the Order are directives to the Attorney General and the Secretary of

23 Homeland Security regarding their exercise of existing statutory and constitutional authority. AG

24 Mem. at 1-2. Because the Order is an internal Executive Branch policy directive, San Francisco

25 cannot plead viable challenges against it. Cf. United States v. Pickard, 100 F. Supp. 3d 981, 1011

26 (E.D. Cal. 2015) (rejecting a Tenth Amendment challenge to a statement of agency policy on the

27 grounds that a policy statement “is a very different creature from a statute” in that it does not bind

28 States as would a statute).

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1

Moreover, consistent with its internal nature, the Executive Order does not directly affect

2 the plaintiff. It does not impose conditions on federal grants or any requirements on state or local

3 jurisdictions. Rather, the Order “establish[es] immigration enforcement as a priority for this

4 Administration,” AG Mem. at 1, in an effort to “ensure that our Nation’s immigration laws are

5 faithfully executed.” Exec. Order 13,768 at 1. It directs the appropriate executive officials to

6 prioritize means for achieving that priority.

7

At no point, however, does the Order purport to directly impose affirmative obligations on

8 state or local jurisdictions. Rather, the Attorney General and the Secretary are to enforce the

9 Order’s directives “to the extent permitted by law.” Exec. Order 13,768, § 9(a). Consistent with

10 that directive, the Executive Order “does not call for the imposition of grant conditions that would

11 violate any applicable constitutional or statutory limitation . . . [n]or does the Executive Order

12 purport to expand the existing statutory or constitutional authority of the Attorney General and

13 the Secretary . . . in any respect.” AG Mem. at 1-2. Rather, in the event the Secretary or the

14 Attorney General determines to impose obligations on a grant program pursuant to the directives

15 contained the Order, such as certification of compliance with 8 U.S.C. § 1373, that obligation

16 may be imposed only where existing legal authority allows, and only where grantees are given

17 “notice of their obligation[s].” Id. at 2.

18 IV. 19

Plaintiff Fails to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum

20

Regarding the merits, Count Two of plaintiff’s Second Amended Complaint alleges that

21 the grant eligibility provision in Section 9(a) of the Executive Order violates the constitutional

22 Separation of Powers, the Spending Clause, and the Tenth Amendment. Especially as elucidated

23 by the AG Memorandum, this provision of the Order is consistent with all of those constitutional

24 provisions.

25

Plaintiff’s claims regarding the grant eligibility provision are all the more difficult to

26 sustain because these are facial challenges to an Executive Order. The Supreme Court has held

27 that a facial challenge is “the most difficult challenge to mount successfully.” United States v.

28

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1 Salerno, 481 U.S. 739, 745 (1987). In this context, “the challenger must establish that no set of

2 circumstances exists under which the [challenged enactment] would be valid.” Id.

3

As the Supreme Court has observed, “[f]acial challenges are disfavored for several

4 reasons.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450

5 (2008). First, “[c]laims of facial invalidity often rest on speculation. As a consequence, they

6 raise the risk of premature interpretation of [enactments] on the basis of factually barebones

7 records.” Id. (internal quotation marks omitted). Additionally, such challenges “run contrary to

8 the fundamental principle of judicial restraint that courts should neither anticipate a question of

9 constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional

10 law broader than is required by the precise facts to which it is to be applied.” These rules apply to

11 Executive Orders as much as to statutes and regulations. See Am. Fed’n of State, Cty. & Mun.

12 Employees v. Scott, 717 F.3d 851, 862-63 (11th Cir. 2013); NTEU v. Bush, 891 F.2d 99, 101 (5th

13 Cir. 1989). As further discussed below, San Francisco’s Second Amended Complaint fails to

14 establish that Section 9 of the Executive Order would be invalid under all circumstances.

15

A. Plaintiff Fails to State a Viable Claim that the Grant

Eligibility Provision Violates the Separation of Powers 16

Count Two alleges that the grant eligibility provision violates the Separation of Powers by

17

“[e]xercising Spending Power that the Constitution grants to Congress” (Doc. 105 ¶ 153). Article

18

I of the Constitution confers on Congress the authority to “lay and collect Taxes, Duties, Imposts

19

and Excises, to pay the Debts and provide for the common Defence and general Welfare of the

20

United States.” U.S. Const. Art. I, § 8, cl. 1. As this Court has said, Congress may, “[i]ncident

21

to” its spending power, “attach conditions on the receipt of federal funds,” Cty. of Santa Clara v.

22

Trump, No. 17-CV-00485-WHO, 2017 WL 1459081, at *21 (N.D. Cal. Apr. 25, 2017) (quoting

23

Dole, 483 U.S. at 206), and “Congress can delegate some discretion to the President to decide

24

how to spend appropriated funds” so long as “any delegation and discretion is cabined by

25

[relevant] constitutional boundaries.” 2017 WL 1459081, at *21; see DKT Mem’l Fund Ltd. v.

26

AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding conditions on spending imposed by

27

28

Motion to Dismiss; Memorandum

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1 President where statute authorized President to set certain “terms and conditions as he may

2 determine”).

3

Especially as elucidated by the AG Memorandum, the grant eligibility provision in

4 Section 9(a) is consistent with this division of constitutional responsibilities. The Executive

5 Order requires the Attorney General and Secretary of Homeland Security to condition grant

6 eligibility on compliance with 8 U.S.C. § 1373 “to the extent consistent with law.” The AG

7 Memorandum makes clear that the Order does not “purport to expand the existing statutory or

8 constitutional authority of the Attorney General and the Secretary . . . in any respect” and “does

9 not call for the imposition of grant conditions that would violate any applicable constitutional or

10 statutory limitation.” AG Mem. at 1-2. Even more specifically, the Memorandum confirms that

11 compliance with Section 1373 will be imposed as a condition of grant eligibility only where the

12 agency “is statutorily authorized to impose such a condition.” Id.

13

In fact, Congress has frequently authorized agencies administering certain grant programs

14 to impose discretionary conditions on the receipt of funds. Those statutory authorizations have

15 taken a variety of forms, including authorizing an agency to ensure that a grant recipient complies

16 “with all provisions of . . . applicable Federal laws,” see 42 U.S.C. § 3752(a)(5)(D) (governing

17 DOJ grant program), or allowing an agency to “plac[e] special conditions” on certain grants under

18 appropriate circumstances. See id. § 3712(a). Pursuant to these types of statutory authorizations,

19 DOJ has already conditioned eligibility for participation in three DOJ-administered grant

20 programs on the applicant’s certification of compliance with Section 1373. See generally Tr. of

21 Oral Arg. at 35:4-6, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr.

22 14, 2017) (identifying the three programs); 2017 WL 1459081, at *4 (same).

23

Further, as noted above, a party challenging the facial constitutionality of an Executive

24 Order must establish that the Order would be unconstitutional in all its applications. See Salerno,

25 481 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which

26 [the enactment] would be valid”); see also Am. Fed’n of State, Cty. & Mun. Employees, 717 F.3d

27 at 862-63; NTEU v. Bush, 891 F.2d at 101. That standard is necessarily impossible to meet in

28

Motion to Dismiss; Memorandum

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1 relation to plaintiff’s Separation of Powers claim, since Congress frequently authorizes the

2 Executive to impose discretionary conditions on the receipt of federal grants.

3

Therefore, especially in light of the AG Memorandum, plaintiff cannot state a viable claim

4 for violation of the constitutional Separation of Powers.

5

B. Plaintiff Fails to State a Viable Claim that the Grant

6

Eligibility Provision Exceeds the Spending Power

7

Count Two in plaintiff’s Second Amended Complaint also alleges that the grant eligibility

8 provision exceeds the federal power under the Spending Clause (Doc. 105 ¶¶ 78-84). This Clause

9 provides that Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts

10 and provide for the common Defence and general Welfare of the United States.” U.S. Const. art.

11 I, § 8, cl. 1. As the Supreme Court has held, “Congress may attach conditions on the receipt of

12 federal funds, and has repeatedly employed the power to further broad policy objectives by

13 conditioning receipt of federal moneys upon compliance by the recipient with federal statutory

14 and administrative directives.” S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation

15 marks omitted).

16

The Court in Dole described certain limitations or potential limitations on the spending

17 power. Most basically, “the exercise of the spending power must be in pursuit of ‘the general

18 welfare’” – as stated in the Spending Clause itself, id. at 207 – and conditions on the receipt of

19 federal funds must be stated “unambiguously” so that recipients can “exercise their choice

20 knowingly, cognizant of the consequences of their participation.” Id. (citing Pennhurst State Sch.

21 & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate

22 under the spending power thus rests on whether the State voluntarily and knowingly accepts the

23 terms of the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of

24 the conditions or is unable to ascertain what is expected of it.”) (citations omitted) (hereinafter

25 Pennhurst). Additionally, the Court observed in Dole, “our cases have suggested (without

26 significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated

27 to the federal interest in particular national projects or programs,” and that “in some

28 circumstances the financial inducement offered by Congress might be so coercive as to pass the

Motion to Dismiss; Memorandum

16

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1 point at which pressure turns into compulsion.” 483 U.S. at 207-08, 211 (internal quotation

2 marks omitted). And finally, the Court said that “other constitutional provisions may provide an

3 independent bar to the conditional grant of federal funds.” Id. at 207-08.

4

Although these are limitations on congressional power, the plaintiff herein alleges that the

5 grant eligibility provision in the Executive Order “purports to exercise Spending Power in ways

6 that even Congress could not” (Doc. 105 ¶ 78). Specifically, the City alleges that the provision

7 imposes “new funding conditions on existing federal funds”; that it imposes “conditions not

8 germane to the purpose of the funds”; that it imposes conditions “so severe as to coerce

9 compliance”; and that it imposes conditions that “require jurisdictions to act unconstitutionally”

10 (id. ¶ 153). Particularly in light of the AG Memorandum, each of these assertions is without

11 merit.

12

Focusing on the “knowing acceptance” aspect of Dole and Pennhurst, San Francisco

13 asserts, first, that the grant eligibility provision unconstitutionally imposes “new funding

14 conditions on existing federal funds” rather than imposing such conditions “in advance” (id.

15 ¶¶ 79, 153).4 See 2017 WL 1459081, at *22 (“Because states must opt-in to a federal program

16 willingly, fully aware of the associated conditions, Congress cannot implement new conditions

17 after-the-fact.”). As described above, however, the AG Memorandum makes clear that the grant

18 eligibility provision will be implemented by “requiring jurisdictions applying for certain [DOJ]

19 grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for

20 receiving an award.” AG Mem. at 2. Thus, the AG Memorandum continues, “[a]ll grantees will

21 receive notice of their obligation to comply with section 1373” ahead of time, and the grant

22 eligibility provision will be applied to “[a]ny jurisdiction that fails to certify compliance.” Id.

23 Necessarily, therefore, potential grantees will be able to “exercise their choice knowingly,

24 cognizant of the consequences of their participation” in grant programs that include this

25 condition. Dole, 483 U.S. at 207. The plaintiff cannot show that the grant eligibility provision

26

27

4 Plaintiff does not allege that the grant eligibility provision violates the requirement that

28

federal grant conditions be stated “unambiguously.” Dole, 483 U.S. at 207. In any event, for the reasons stated herein, any such claim would be without merit in light of the AG Memorandum.

Motion to Dismiss; Memorandum

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1 will fail this aspect of Dole in all its applications, as necessary in this facial challenge. See

2 Salerno, 481 U.S. at 745.

3

Second, plaintiff alleges that the grant eligibility provision imposes conditions that are

4 “not germane to the purpose of the funds” (Doc. 105 ¶ 153). As the Court of Appeals has

5 observed, however, this aspect of Dole suggests only a “possible ground” for invalidating an

6 enactment, and does not impose an “exacting standard”:

7

The Supreme Court has suggested that federal grants conditioned on compliance

8

with federal directives might be illegitimate if the conditions share no relationship

to the federal interest in particular national projects or programs. This possible

9

ground for invalidating a Spending Clause statute, which only suggests that the

legislation might be illegitimate without demonstrating a nexus between the

10

conditions and a specified national interest, is a far cry from imposing an exacting

11

standard for relatedness.

Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207). 12

Thus, conditions on federal funding must only “bear some relationship to the purpose of the 13

federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167 14

(1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 15

2004) (noting that Supreme Court has never “overturned Spending Clause legislation on 16

relatedness grounds”). 17

Especially as implemented by the AG Memorandum, the grant eligibility provision easily 18

meets this standard. The provision will be applied only to grants administered by the Department 19

of Justice and the Department of Homeland Security – that is, the primary law enforcement 20

agency of the United States and the agency responsible for the admission and removal of non21

citizens. AG Mem. at 1. DHS is the very agency whose communication with state and local 22

government officials is protected by Section 1373. Moreover, the grant eligibility provision will 23

be applied only to “certain . . . grants” as to which the agency “is statutorily authorized to impose 24

such a condition.” Id. at 2. Plaintiff alleges that the grant eligibility provision “threatens funds 25

that support vital services,” including health care, social services, public transportation, and 26

housing (Doc. 105 ¶¶ 10, 104-126). The AG Memorandum has eliminated any possibility that the 27

28

Motion to Dismiss; Memorandum

18

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1 grant eligibility provision could be applied in relation to any of those categories of federal

2 funding.

3

Third, plaintiff alleges that the grant eligibility provision imposes conditions “so severe as

4 to coerce compliance” (Doc. 105 ¶ 153). As the Court of Appeals has observed, however, the

5 Supreme Court in Dole concluded that it would find a violation of this potential limitation, “if

6 ever, [only] in the most extraordinary circumstances.” State of Cal. v. United States, 104 F.3d

7 1086, 1092 (9th Cir. 1997) (citing Dole, 483 U.S. at 210-11). Thus, for example, the Court in

8 Dole found no constitutional violation where a State risked losing 5% of its highway funds for

9 refusing to implement a federal minimum drinking age. Dole, 483 U.S. at 211. Conversely, the

10 Court held more recently that Congress violated anti-coercion principles by subjecting States to a

11 risk of losing “all federal Medicaid funding,” which constituted “over 10 percent of a State’s

12 overall budget,” if they declined to adopt certain Medicaid expansion actions. See Nat’l Fed’n of

13 Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (hereinafter NFIB). In that case, “the sheer

14 size of this federal spending program in relation to state expenditures” rendered the condition

15 coercive. Id. at 2663. As the Court held, however, “courts should not conclude that [an enact-

16 ment] is unconstitutional on this ground unless the coercive nature of an offer is unmistakably

17 clear.” Id. at 2662.

18

Under this precedent, plaintiff’s “coerciveness” claim must fail, especially in light of the

19 AG Memorandum. As noted already, the grant eligibility provision of the Executive Order “will

20 be applied solely to [certain] federal grants administered by the Department of Justice or the

21 Department of Homeland Security, and not to other sources of federal funding.” AG Mem. at 1.

22 Moreover, DOJ has so far identified only three grant programs whose eligibility will be condi-

23 tioned on compliance with Section 1373. See Tr. of Oral Arg. at 35:2-9. Plaintiff’s complaint

24 alleges that it receives funds under one of those programs, but does not allege the amount of

25 funding involved (Doc. 105 ¶ 53). In these circumstances, San Francisco has fallen far short of

26 stating a viable claim that the “coercive nature” of the grant eligibility provision is “unmistakably

27 clear.” See NFIB, 132 S. Ct. at 2662.

28

Motion to Dismiss; Memorandum

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1

Fourth and finally, plaintiff alleges that the grant eligibility provision exceeds the

2 spending power by requiring the City to “act unconstitutionally” (Doc. 105 ¶ 153). The Court in

3 Dole emphasized the narrowness on this limitation on the federal spending power, noting that

4 “the ‘independent constitutional bar’ limitation . . . is not . . . a prohibition on the indirect

5 achievement of objectives which Congress is not empowered to achieve directly.” 483 U.S. at

6 210. Rather, the Court said, this limitation “stands for the unexceptionable proposition that the

7 power may not be used to induce the States to engage in activities that would themselves be

8 unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously

9 discriminatory state action or the infliction of cruel and unusual punishment would be an

10 illegitimate exercise of the Congress’ broad spending power.” Id. at 210-11.

11

The grant eligibility provision does not “induce” San Francisco to violate any such

12 constitutional prohibition. As stated in the AG Memorandum, that provision merely requires

13 grantees to certify compliance with 8 U.S.C. § 1373, which proscribes prohibiting or restricting

14 the sharing of information with federal immigration authorities. See AG Mem. at 2. That is not,

15 however, the kind of “independent [constitutional] bar to the conditional grant of federal funds”

16 that the Supreme Court contemplated in Dole. 483 U.S. at 207-08. Plaintiff alleges that the grant

17 eligibility provision will require it to comply with federal immigration detainer requests in

18 violation of the Fourth Amendment to the Constitution (Doc. 105 ¶ 82), but the AG Memoran-

19 dum says nothing about such requests, and, in any event, cooperating with such requests is fully

20 consistent with the Fourth Amendment. Moreover, the AG Memorandum states affirmatively

21 that the grant eligibility provision “does not call for the imposition of grant conditions that would

22 violate any applicable constitutional or statutory limitation.” AG Mem. at 1-2. San Francisco

23 cannot show that the grant eligibility provision will require the City to “act unconstitutionally” in

24 all circumstances. Cf. Salerno, 481 U.S. at 745.

25

In short, particularly as elucidated by the AG Memorandum, the grant eligibility provision

26 in the Executive Order is only a “relatively mild encouragement” to comply with Section 1373.

27 483 U.S. at 211.

28

Motion to Dismiss; Memorandum

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1

C. Plaintiff Fails to State a Viable Claim that the Grant

Eligibility Provision Violates the Tenth Amendment

2 Further, Count Two in the Second Amended Complaint also alleges that the grant

3 eligibility provision of Section 9(a) violates the Tenth Amendment, which provides that “[t]he

4 powers not delegated to the United States by the Constitution, nor prohibited by it to the States,

5 are reserved to the States respectively, or to the people.” This amendment embodies the principle

6 that the “pre-existing sovereign States” (and their subdivisions) retain their sovereignty under the

7 Constitution and that the federal government may not encroach upon that sovereignty. See U.S.

8 Term Limits, Inc. v. Thornton, 514 U.S. 779, 801 (1995); N.Y. v. United States, 505 U.S. 144, 156

9 (1992). San Francisco alleges that the grant eligibility provision violates this principle by

10 “commandeer[ing] state and local officials to enforce federal law” (Doc. 105 ¶ 8).

11 Although “[t]he Federal Government may not compel the States to enact or administer a

12 federal regulatory program” or to “act on the Federal Government’s behalf.” N.Y. v. United

13 States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2627

14 (2012), San Francisco does not explain how the grant eligibility provision could be said to violate

15 this principle. Moreover, the circumstances here belie any such conclusion. As noted already,

16 this provision of the Executive Order will be implemented by requiring applicants for certain

17 grants to “certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for

18 receiving an award. See AG Mem. at 2. And that condition will be imposed only where author-

19 ized by existing legal authority and only where grantees receive “notice of their obligation.” Id.

20 Thus, where, as here, plaintiff’s obligation would arise only because of its voluntary acceptance

21 of grants that included the condition, the Federal Government has not commandeered the City,

22 because the City may decline to apply for the specific DOJ or DHS grants to which this condition

23 is attached. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 847 (9th Cir. 2003) (“[A]s long as the

24 alternative to implementing a federal regulatory program does not offend the Constitution’s

25 guarantees of federalism, the fact that the alternative is difficult, expensive or otherwise unappeal-

26 ing is insufficient to establish a Tenth Amendment violation.”) (internal quotation marks

27 omitted).

28

Motion to Dismiss; Memorandum

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1

Accordingly, San Francisco has not pled a viable claim that the grant eligibility provision

2 violates the Tenth Amendment.

3 V. 4

Plaintiff’s Claim that the “Appropriate Enforcement Action” Provision of Section 9(a) Violates the Tenth Amendment Is Non-Justiciable

5

Lastly, Count Three of plaintiff’s Second Amended Complaint alleges that the Tenth

6 Amendment is violated by the provision in Section 9(a) that instructs the Attorney General to

7 “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has

8 in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

9 San Francisco characterizes various statements by public officials as meaning that “Defendants

10 interpret a state or local government’s decision not to comply with [federal immigration] detainer

11 requests as a ‘statute, policy, or practice that prevents or hinders the enforcement of Federal law’”

12 (Doc. 105 ¶ 87). From this, the City leaps to the conclusion that this provision in Section 9(a)

13 “commandeers state and local governments” in violation of the Tenth Amendment, “compelling

14 them to enforce a federal program by imprisoning individuals subject to removal at the request of

15 the Federal government” (id. ¶ 157). Plaintiff does not allege, however, that the defendants have

16 taken any “enforcement action” against it or have indicated that any such action is imminent.

17 Accordingly, this claim is non-justiciable and must be dismissed under principles of standing and

18 ripeness.

19

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

20 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

21 justiciable.” Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288

22 F.3d 414, 416 (9th Cir. 2002). Two principles of justiciability bar jurisdiction over plaintiff’s

23 Count Three: standing and ripeness. “While standing is concerned with who is a proper party to

24 litigate a particular matter, the doctrines of mootness and ripeness determine when that litigation

25 may occur.” Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998).

26 Where a plaintiff lacks standing or its claims are unripe, the court lacks jurisdiction. See Nat’l

27 Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 832 (9th Cir. 2016).

28

Motion to Dismiss; Memorandum

22

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1

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must

2 demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury and

3 defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

4 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,”

5 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

6 155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be

7 “certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. “[S]tanding is

8 perhaps the most important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City of Dallas, 493

9 U.S. 215, 231 (1990) (internal quotation marks omitted).

10

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

11 that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

12 challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

13 claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events

14 that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523

15 U.S. 296, 300 (1998) (internal quotation marks omitted).

16

In assessing constitutional ripeness in the context of a “pre-enforcement challenge” to a

17 statutory or administrative enactment, the courts consider “both the fitness of the issues for

18 judicial decision and the hardship to the parties of withholding court consideration.” Abbott

19 Labs., 387 U.S. at 149. “A claim is fit for decision if the issues raised are primarily legal, do not

20 require further factual development, and the challenged action is final.” Standard Alaska Prod.

21 Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989). In other words, a court considers whether the

22 court and the parties would “benefit from deferring review until the agency’s policies have

23 crystallized and the question arises in some more concrete and final form.” Eagle-Picher Indus.,

24 Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (internal quotation marks omitted); see U.S. W.

25 Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1119 (9th Cir. 1999) (finding that claim was not

26 fit for decision where administrative proceedings had not concluded and court would “benefit”

27 from outcome of those proceedings). Finally, “[t]o meet the hardship requirement, a litigant must

28 show that withholding review would result in direct and immediate hardship and would entail

Motion to Dismiss; Memorandum

23

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1 more than possible financial loss.” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325

2 (9th Cir. 1989) (internal quotation marks omitted).

3

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

4 constitutional standing to challenge the “appropriate enforcement action” provision, Steel Co.,

5 523 U.S. at 102-03, and this claim is not constitutionally ripe for judicial review, Abbott Labs.,

6 387 U.S. at 148-49. The defendants have taken no enforcement action against San Francisco

7 under Section 9(a) of the Executive Order, and there is no indication that any such action is

8 imminent. Thus, the plaintiff has not suffered any “concrete” injury due to this provision, and no

9 such injury is “certainly impending.” See Whitmore, 495 U.S. at 155, 158. Similarly, since the

10 federal government might never take enforcement action against San Francisco under Section

11 9(a), this claim rests on “contingent future events that . . . may not occur at all,” see Texas, 523

12 U.S. at 300, and the City cannot show any “direct and immediate hardship” from withholding

13 review, see Winter, 900 F.2d at 1325.

14

Nor could the plaintiff allege that the mere possibility of enforcement action has inflicted

15 any cognizable injury. Indeed, there is always a possibility that the Federal Government may sue

16 a State or local government alleging that the defendant’s laws or policies are constitutionally

17 preempted. See Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012); United States v.

18 South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th

19 Cir. 2012). This authority exists entirely independent of the Executive Order. Id. Further, if

20 such action were to occur, the City would have an opportunity at that time to challenge its

21 propriety and merits.

22

Accordingly, Count Three of the Second Amended Complaint should be dismissed for

23 lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

24

CONCLUSION

25

For the reasons discussed above, all of plaintiff’s claims should be dismissed with

26 prejudice.

27 Dated: June 6, 2017

28

Motion to Dismiss; Memorandum

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Motion to Dismiss; Memorandum No. 3:17-cv-00485-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States
25

 
 Case 3:17-cv-00485-WHO Document 115 Filed 06/20/17 Page 1 of 33

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

Plaintiff,

PLAINTIFF CITY AND COUNTY OF SAN

19

FRANCISCO’S OPPOSITION TO

vs.

DEFENDANTS’ NOTICE OF MOTION AND

20

MOTION TO DISMISS

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

Date:

July 12, 2017

JOHN F. KELLY, Secretary of United States Time:

2:00 p.m.

22 Department of Homeland Security,

Judge:

Honorable William H. Orrick

JEFFERSON B. SESSIONS III, Attorney

Dept:

Courtroom 2

23 General of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date:

April 23, 2018

25

26

27

28
CCSF’s Opposition to Motion to Dismiss; CCSF v. President Trump, et al; Case No. 17-00485

N:\CXLIT\LI2017\171027\01200900.docx

Case 3:17-cv-00485-WHO Document 115 Filed 06/20/17 Page 2 of 33

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ......................................................................................................... iii
3 INTRODUCTION ...........................................................................................................................1 LEGAL STANDARD......................................................................................................................1
4 FACTUAL BACKGROUND ..........................................................................................................2
5 ARGUMENT ...................................................................................................................................5

6

I. San Francisco’s Claims Are Justiciable. ..................................................................5

7

A. Claims Challenging The Executive Order Are Justiciable. .........................6

B. The Claim For Declaratory Relief Is Justiciable. .........................................8 8

II. Count One States A Viable Claim For Declaratory Relief That San Francisco

9

Complies with Section 1373. .................................................................................10

10

III. Count Two States A Viable Claim That The Funding Restriction Violates

Separation Of Powers Principles, The Spending Clause, And The Tenth

11

Amendment. ...........................................................................................................11

12

A. The Executive Order Is More Than An Internal Directive,

And It Is Subject To Judicial Review. .......................................................12

13

B. The Funding Restriction Is Facially Unconstitutional. ..............................14

14

1. The Court Already Found That The Funding Restriction Likely

15

Violates Separation Of Powers, The Spending Clause, And The Tenth Amendment. .........................................................14

16

2. The Court Should Not Rely On The “Elucidations” Offered

By The AG Memorandum. ............................................................15 17
a. The AG Memorandum Is Not An Authoritative

18

Interpretation Of The Executive Order. .............................16

19

b. The AG Memorandum Is Not Binding Guidance

About Implementation Of The Executive Order. ..............17

20

3. The AG Memorandum Is Not A Constitutional Application

21

Of The Executive Order That Defeats A Facial Challenge

Under Salerno. ...............................................................................20

22

4. The AG Memorandum Does Not Eliminate The

23

Constitutional Violations Identified By The Executive Order. .....21

a. The Funding Restriction Still Violates The Separation

24

Of Powers...........................................................................22

25

b. The Funding Restriction Still Violates The Spending

Clause. ................................................................................23 26
c. The Funding Restriction Still Violates The Tenth

27

Amendment. .......................................................................24

28

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IV. Count Three States A Viable Claim That The Enforcement Directive Is

1

Unconstitutional. ....................................................................................................25

2 CONCLUSION..............................................................................................................................25

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 Federal Cases
2

TABLE OF AUTHORITIES

Alexander v. Sandoval 3 532 U.S. 275 (2001)...................................................................................................................11

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez 5 458 U.S. 592 (1982)...............................................................................................................6, 12

6 Ariz. Right to Life Political Action Comm. v. Bayless 320 F.3d 1002 (9th Cir. 2003) .....................................................................................................6
7 Ashcroft v. Iqbal
8 556 U.S. 662 (2009)...................................................................................................................11
9 Bell Atl. Corp. v. Twombly 10 550 U.S. 544 (2007)...............................................................................................................2, 11
11 Chen v. Schiltgen No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) .........................................13
12 City of Los Angeles, Calif. v. Patel
13 135 S. Ct. 2443 (2015)...............................................................................................................21
14 Clinton v. City of N.Y. 15 524 U.S. 417 (1998)...................................................................................................................14
16 Collin County, Tex. v. Homeowners Ass'n for Values Essential to Neighborhoods (HAVEN) 915 F.2d 167 (5th Cir. 1990).....................................................................................10
17 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach
18 657 F.3d 936 (9th Cir. 2011) .....................................................................................................16

19 Cook v. Brewer 20 637 F.3d 1002 (9th Cir. 2011) .....................................................................................................1
21 Foti v. City of Menlo Park 146 F.3d 629 (9th Cir. 1998) .....................................................................................................17
22 Harris Cty. Texas v. MERSCORP Inc.
23 791 F.3d 545 (5th Cir. 2015) .....................................................................................................11

24 Knox v. Service Employees Intern. Union 567 U.S. 298 (2012)...................................................................................................................15
25

26

Lee v. City of Los Angeles 250 F.3d 668 (9th Cir. 2001) .......................................................................................................2

27 Legal Aid Society of Alameda County v. Brennan
28 608 F.2d 1319 (9th Cir. 1979) ...................................................................................................13

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Libas Ltd. v. Carillo 1 329 F.3d 1128 (9th Cir. 2003) .....................................................................................................2
2 LSO, Ltd. v. Stroh 3 205 F.3d 1146 (9th Cir. 2000) .....................................................................................................6

4 Lujan v. Defenders of Wildlife 504 U.S. 555 (1997).....................................................................................................................1
5 Maya v. Centex Corp.
6 658 F.3d 1060 (9th Cir. 2011). ....................................................................................................1
7 MedImmune, Inc. v. Genentech, Inc. 8 549 U.S. 118 (2007)...............................................................................................................9, 10
9 Medtronic, Inc. v. Mirowski Family Ventures, LLC 134 S. Ct. 843 (2014).................................................................................................................10
10 Muhammad v. Berreth
11 No. C 12-02407 CRB, 2012 WL 4838427 (N.D. Cal. Oct. 10, 2012).......................................11
12 Narenji v. Civiletti 13 617 F.2d 745 (D.C. Cir. 1980) ...................................................................................................18
14 Nat’l Fed. of Indep. Bus. v. Sebelius 132 S. Ct. 2566 (2012)...............................................................................................................15
15 Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp.
16 766 F.2d 228 (6th Cir. 1985) .......................................................................................................6

17 Organized Village of Kake v. U.S. Dep’t of Agric. 18 795 F.3d 956 (9th Cir. 2015) .......................................................................................................6
19 Patel v. City of Los Angeles 738 F.3d 1058 (9th Cir. 2013) (en banc). ..................................................................................21
20 S. Dakota v. Dole
21 483 U.S. 203 (1987).............................................................................................................14, 15

22 Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty. 343 F.3d 1036 (9th Cir. 2003) ....................................................................................................1
23

24

Shell Gulf of Mexico Inc. v. Center for Biological Diversity, Inc. 771 F.3d 632 (9th Cir. 2014) .....................................................................................................10

25 Societe de Conditionnement v. Hunter Engineering Co.
26 655 F.2d 938 (9th Cir. 1981) .....................................................................................................11

27 Somers v. Apple, Inc. 729 F.3d 953 (9th Cir. 2013) .......................................................................................................2
28

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Stapley v. Pestalozzi 1 733 F.3d 804 (9th Cir. 2013) .................................................................................................2, 23
2 Strong v. Ford 3 108 F.3d 1386 (9th Cir. 1997) (unpublished) ............................................................................11

4 Susan B. Anthony List v. Driehaus 134 S. Ct. 2334 (2014).................................................................................................................8
5 Tenaska Washington Partners II, L.P. v. United States
6 34 Fed. Cl. 434 (1995) ...............................................................................................................18
7 Texas v. United States 8 787 F.3d 733 (5th Cir. 2015) .......................................................................................................6
9 United States v. Pickard 100 F. Supp. 3d 981 (E.D. Cal. 2015) .......................................................................................14
10 United States v. Salerno
11 481 U.S. 739 (1987)...................................................................................................................20
12 United States v. Stevens 13 559 U.S. 460 (2010)...................................................................................................................16
14 Valle del Sol Inc. v. Whiting 732 F.3d 1006 (9th Cir. 2013) .....................................................................................................6
15 Virginia v. American Booksellers
16 484 U.S. 383, 392 (1988).............................................................................................................7

17 Virginia ex rel. Cuccinelli v. Sebelius 18 656 F.3d 253 (4th Cir. 2011) .......................................................................................................6
19 Washington v. Trump 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................20
20 White v. Paulsen
21 997 F. Supp. 1380 (E.D. Wash. 1998) .......................................................................................11

22 Whitman v. Am. Trucking Associations 531 U.S. 457 (2001)...................................................................................................................15
23

24

Williams v. Cty. of Alameda 26 F. Supp. 3d 925 (N.D. Cal. 2014). ..........................................................................................5

25 Wolfson v. Brammer
26 616 F.3d 1045 (9th Cir. 2010) .....................................................................................................8

27 Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)...................................................................................................................13
28

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Federal Constitutional Provisions 1
U.S. Const. 2 art. I, § 8, cl.1 .............................................................................................................................14
3 Federal Statutes
4 2 U.S.C. 5 §§ 683 et seq. .............................................................................................................................14

6 8 U.S.C. § 1103(a)(1) ...............................................................................................................................18
7 § 1103(c)(1) ...............................................................................................................................18
§ 1373 ................................................................................................................................ passim 8

9

28 U.S.C. § 512 ..........................................................................................................................................18

10 § 1331 ........................................................................................................................................10 § 1346 ........................................................................................................................................10

11 § 2201(a) ......................................................................................................................................9

12 Federal Rules

13 Federal Rule of Civil Procedure 14 12(b)(1) ....................................................................................................................................... 9

15

Federal Rules of Evidence 201 ...............................................................................................................................................2

16 Federal Regulations

17 28 C.F.R.
18 § 0.25 .........................................................................................................................................18 § 0.5(c) .......................................................................................................................................18
19 San Francisco Administrative Code
20

S.F. Admin. Code 21 § 12H........................................................................................................................................3, 4 22 § 12H.2.........................................................................................................................................3
§ 12I .....................................................................................................................................3, 4, 7 23 § 12I.3 ..........................................................................................................................................7

24 Other References

25 Black’s Law Dictionary 634 (10th ed. 2014) ....................................................................................................................13
26 Discontinued Official Action
27 13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed. 2017) (collecting cases) ..................................19

28

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Peter L. Strauss, Overseer or “The Decider”? The President in Administrative Law 1 75 Geo. Wash. L. Rev. 696, 739 (2007) .............................................................................18, 19
2 Randolph Moss’ article, Executive Branch Legal Interpretation: A Perspective from 3 the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1318 (2000).........................................19

4 Trevor W. Morrison, Book Review: Constitutional Alarmism 124 Harv. L. Rev. 1688 (2011) ..................................................................................................19
5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

The President issued an Executive Order rife with constitutional violations, threatening to strip

3 all federal funds from sanctuary jurisdictions and directing unspecified enforcement action against

4 them. The Attorney General now attempts to rescue this Order by saying that the Federal Government

5 will disregard it. According the Attorney General, the Department of Justice and the Department of

6 Homeland Security will merely continue to exercise authority conferred by other laws, and more

7 specifically will enforce grant conditions requiring compliance with 8 U.S.C. § 1373 only where

8 authorized by statutes independent of the Executive Order. Defendants move to dismiss

9 San Francisco’s complaint against the Executive Order based, in large part, on the Attorney General’s

10 implicit abandonment of its terms. This rescue attempt must fail. The government cannot keep an

11 unconstitutional law on the books by promising, for the time being, not to apply it according to its

12 plain text. San Francisco—and other jurisdictions—are entitled to know whether the Executive Order

13 is in effect. 14

LEGAL STANDARD

15

A Rule 12(b)(1) motion to dismiss tests the court’s subject matter jurisdiction, including

16 Article III standing and ripeness. Where, as here, a defendant mounts a facial attack arguing that the

17 allegations contained in a complaint are insufficient to invoke federal jurisdiction, the motion should

18 be granted only if “the complaint, when considered in its entirety, on its face, fails to allege facts

19 sufficient to establish subject matter jurisdiction.” See, e.g., Savage v. Glendale Union High Sch., Dist.

20 No. 205, Maricopa Cty., 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003). The court “must accept as true all

21 material allegations of the complaint and must construe the complaint in favor of the complaining

22 party.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). Moreover, “general factual

23 allegations of injury resulting from the defendant’s conduct may suffice,” to establish justiciability

24 “for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are

25 necessary to support the claim.’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561(1997)

26 (alteration in original)).

27

“A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Cook v. Brewer, 637 F.3d

28 1002, 1004 (9th Cir. 2011) (internal quotations and citation omitted). The court should dismiss a claim

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1 only if it “(1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a

2 cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). When considering

3 a Rule 12(b)(6) motion to dismiss a complaint, the court accepts as true all allegations of material fact

4 and construes them in the light most favorable to the plaintiff. Stapley v. Pestalozzi, 733 F.3d 804, 809

5 (9th Cir. 2013). The court “determine[s] whether, assuming all facts and inferences in favor of the

6 nonmoving party, it appears beyond doubt that [the plaintiff] can prove no set of facts to support its

7 claims.” Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003). The motion must be denied if the

8 plaintiff alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

9 Twombly, 550 U.S. 544, 547 (2007).

10

In both Rule 12(b)(1) and 12(b)(6) motions, the Court may consider—in addition to the

11 allegations of the complaint—documents and facts that are proper subjects of judicial notice. See, e.g.,

12 Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001) (noting that a court reviewing a Rule

13 12(b)(6) motion may take judicial notice of “matters of public record” under Fed. R. Evid. 201). In

14 addition, a court reviewing a Rule 12(b)(6) motion may consider documents attached to the complaint

15 or materials that the complaint necessarily relies upon and are of undisputed authenticity. Lee v.

16 City of Los Angeles, 250 F.3d at 688-89.

17

FACTUAL BACKGROUND

18

During his campaign, Donald Trump repeatedly condemned sanctuary cities, singling out

19 San Francisco in particular as a jurisdiction whose policies he believed threatened public safety.

20 San Francisco’s Second Amended Complaint (Dkt. No. 105) (“SAC”) ¶¶ 66, 65. Within a week after

21 being sworn in as President of the United States, he took action to carry out his threats.

22

On January 25, 2017, the President issued Executive Order 13768, entitled “Enhancing Public

23 Safety in the Interior of the United States” (“Executive Order”). SAC ¶ 1. The Executive Order directs

24 the Attorney General and the Secretary of the Department of Homeland Security (“DHS”) to ensure

25 that “sanctuary jurisdictions” are not eligible for federal funds (the “Funding Restriction”) and to “take

26 appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in effect

27 a statute, policy, or practice that prevents or hinders the enforcement of Federal law” (the

28 “Enforcement Directive”). SAC Exh. 3 (“Executive Order”) § 9(a).

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1

The plain language of the Executive Order indicates that it seeks to withhold almost all current

2 and future federal funds from “sanctuary jurisdictions,” including any jurisdiction that refuses to

3 comply with ICE detainer requests. See SAC ¶¶ 60-61. And concurrent statements by President

4 Trump’s press secretary echo this broad sweep. For example, the press statement announcing the

5 issuance of the Executive Order stated: “We are going to strip federal grant money from the sanctuary

6 states and cities that harbor illegal immigrants. The American people are no longer going to have to be

7 forced to subsidize this disregard for our laws.” Id. ¶ 67.

8

San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in federal

9 funds. Id. ¶ 102. This accounts for approximately 13% of the total annual operating budget. On top of

10 this, San Francisco expects to receive an additional $800 million in federal multi-year grants, largely

11 for public infrastructure projects. Id. ¶ 103. San Francisco uses federal funds to pay for critical services

12 such as in-home supportive services for about 23,000 low-income elderly, disabled, or blind

13 San Franciscans (id. ¶ 106); nursing services for adult residents of San Francisco who are disabled or

14 chronically ill, including specialized care for those with wounds, head trauma, stroke, spinal cord and

15 orthopedic injuries, HIV/AIDS, and dementia (id. ¶ 112); and the Bay Area Urban Areas Security

16 Initiative, which sustains and improves regional capacity to prevent, mitigate, respond to, and recover

17 from terrorist attacks and catastrophic disasters (id. ¶ 118).

18

And San Francisco has sanctuary laws, which are currently codified in two chapters of

19 San Francisco’s Administrative Code: Chapters 12H and 12I. Id. ¶ 21. Chapter 12H prohibits

20 San Francisco departments, agencies, officers, and employees from using City funds or resources to

21 assist in enforcing federal immigration law or to gather or disseminate information regarding an

22 individual’s release status, or other confidential identifying information, unless such assistance is

23 required by federal or state law. S.F. Admin. Code § 12H.2; SAC ¶¶ 22-23. As relevant here, Chapter

24 12I prohibits San Francisco law enforcement officials from detaining an individual who is otherwise

25 eligible for release from custody solely on the basis of a civil immigration detainer request issued by

26 U.S. Immigration and Customs Enforcement (“ICE”). S.F. Admin. Code § 12H.2; SAC ¶ 24.

27

Accordingly, and given the severe consequences threatened by the Executive Order (SAC

28 ¶ 10), San Francisco filed suit on January 31, 2017. San Francisco’s Second Amended Complaint

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1 raises three claims. First, the SAC seeks declaratory relief that San Francisco’s sanctuary city laws—

2 Administrative Code Chapters 12H and 12I—comply with 8 U.S.C. § 1373 (“Section 1373”). SAC ¶¶

3 144-48. Second, the SAC claims that the Executive Order’s Funding Restriction violates the Tenth

4 Amendment, the Spending Clause, and separation of powers. SAC ¶¶ 149-53. Third, the SAC claims

5 that the Executive Order’s Enforcement Directive violates the Tenth Amendment. SAC ¶¶ 154-57.

6 Shortly after filing its complaint, San Francisco filed a motion for a preliminary injunction seeking to

7 have section 9(a) of the Executive Order enjoined. Dkt. No. 21.

8

In the weeks and months following issuance of the Executive Order—and the filing of

9 San Francisco’s lawsuit—Defendants continued to threaten severe consequences for sanctuary cities:

10

 President Trump confirmed that he intended to use “defunding” as a “weapon” to get

11

sanctuary cities to change their policies. Request for Judicial Notice In Support Of

12

San Francisco’s Opposition to Motion to Dismiss (“RJN”) Exh. A at 4.

13

 The President’s press secretary informed the nation that President Trump intended to

14

ensure that “counties and other institutions that remain sanctuary cities don’t get federal

15

government funding,” and praised Miami-Dade County, which had swiftly abandoned its

16

policy of not complying with detainers unless reimbursed by the federal government, for

17

“understand[ing] the importance of this order.” Id. Exh. B at 4.

18

 Attorney General Jefferson Sessions stated at a press conference that failure to comply with

19

Section 1373 would result in “withholding grants, termination of grants, and disbarment or

20

ineligibility for future grants,” and that the Government would even seek to “claw back”

21

funds awarded to sanctuary jurisdictions. RJN Exh. C at 3. In these remarks, he

22

specifically classified San Francisco as a “sanctuary city.” Id at 2; see also RJN Exh. D.

23

But during the hearing on Plaintiffs’ motion for a preliminary injunction, Defendants executed

24 a last-minute about-face, orally proposing a new and narrow interpretation of the Executive Order. See

25 Order Granting Motion to Enjoin Section 9(a) of Executive Order 13768 (Dkt. No. 82) (“PI Order”) at

26 2. This Court rejected that interpretation as “not legally plausible” (id. at 3), and preliminarily enjoined

27 Section 9(a) on April 25, 2017, after concluding that San Francisco was likely to succeed on the merits

28 //
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1 of its separation of powers, Spending Clause, and Tenth Amendment challenges to the Order (id. at

2 35-49).

3

On May 22—approximately four months after President Trump signed the Executive Order—

4 the Attorney General published an “implementation” memorandum purporting to narrow the

5 Executive Order’s reach consistent with defense counsel’s statements at the hearing. See Defendants’

6 Motion to Dismiss (Dkt. No. 111) (“Mot.”) at Attachment 1 (“AG Memorandum”). Notably, however,

7 the AG Memorandum does not address several critical issues. It repeats that “sanctuary jurisdictions”

8 will be defined as those jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373” (id. at 2),

9 but does not provide any guidance on what Defendants believe Section 1373 requires, and in

10 particular, whether Defendants believe it requires compliance with ICE detainer requests. It does not

11 state how DHS will implement the Executive Order. And it does not indicate how the Attorney

12 General will implement the Enforcement Directive.

13

Shortly after issuing the AG Memorandum, Defendants filed a motion for reconsideration

14 arguing that the Memorandum undermined several aspects of the Court’s PI Order. See Defendants’

15 Motion for Leave to File a Motion for Reconsideration (Dkt. No. 102). This motion has been fully

16 briefed and remains pending.

17

ARGUMENT

18 I. San Francisco’s Claims Are Justiciable.

19

In Part I of their Motion, Defendants perfunctorily assert that all three of San Francisco’s

20 claims should be dismissed because San Francisco lacks standing and its claims are unripe.1 Mot. at

21 10. In subsequent sections, Defendants repackage and restate their justiciability argument concerning

22 Counts One (San Francisco law complies with 8 U.S.C. § 1373) and Three (the Enforcement Directive

23 is unconstitutional). Mot. at 11-12, 22-24. Defendants’ argument fails on all fronts.

24 //

25 1 Defendants’ entire “argument” in this regard consists of two sentences stating the standing
26 and ripeness requirements, and a third sentence directing the Court to the arguments made in Defendants’ Motion for Reconsideration. Mot. at 10. But “[i]t is wholly improper for Plaintiff to
27 incorporate by reference legal arguments made in a brief filed in connection with a motion that is not before the Court” as it would allow for circumvention of page limits imposed by the local rules.
28 Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 947 (N.D. Cal. 2014).

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1

A. Claims Challenging The Executive Order Are Justiciable.

2

With respect to San Francisco’s counts concerning the constitutionality of the Executive Order

3 (Counts Two and Three), the Court has already rejected Defendants’ justiciability argument in its

4 order granting San Francisco’s motion for a preliminary injunction. PI Order at 11-34. And for good

5 reason. The Executive Order threatens San Francisco with the loss of at least some federal grant funds

6 (SAC ¶¶ 58-61) and, as the Court correctly held, this “‘loss of funds promised under federal law

7 []satisfies Article III’s standing requirement.’” PI Order at 29 (quoting Organized Village of Kake v.

8 U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015)). Moreover, there can be no dispute that the

9 purpose of the Executive Order is to pressure jurisdictions to change their laws (see, e.g., SAC ¶ 68)—

10 and that this, too, constitutes an injury sufficient to satisfy the Article III case or controversy

11 requirement. See PI Order at 27-28 (concluding that the “Counties’ claims implicate a constitutional

12 interest” because the “Executive Order seeks to compel them to change their policies and enforce the

13 Federal government’s immigration laws”); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,

14 Barez, 458 U.S. 592, 601 (1982) (states have a sovereign interest in “the power to create and enforce a

15 legal code”); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (“when a

16 federal law interferes with a state’s exercise of its sovereign ‘power to create and enforce a legal code’

17 [] it inflict[s] on the state the requisite injury-in-fact.”); Ohio ex rel. Celebrezze v. U.S. Dep’t of

18 Transp., 766 F.2d 228, 233 (6th Cir. 1985); Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015).

19

And although Defendants have not yet officially declared San Francisco a “sanctuary

20 jurisdiction,” withheld any funds pursuant to the Funding Restriction, or initiated other enforcement

21 action against San Francisco, this does not defeat the Court’s jurisdiction. A plaintiff “does not have to

22 await the consummation of threatened injury to obtain preventive relief.” Valle del Sol Inc. v. Whiting,

23 732 F.3d 1006, 1015 (9th Cir. 2013) (internal quotation omitted). Rather, “it is ‘sufficient for standing

24 purposes that the plaintiff intends to engage in a ‘course of conduct arguably affected with a

25 constitutional interest’ and that there is a credible threat that the provision will be invoked against the

26 plaintiff.’ ” Id. (citing Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th

27 Cir. 2003) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000). As this Court

28 previously explained, San Francisco has standing to bring a pre-enforcement challenge to Section 9(a)

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1 of the Executive Order because it has a well-founded fear of enforcement. PI Order at 19-33. Three

2 sets of facts alleged in the Complaint—and supported by exhibits in the RJN—support this conclusion.

3

First, it is beyond dispute that San Francisco law generally restricts employees from assisting

4 in the enforcement of federal immigration law and specifically prohibits law enforcement officials

5 from detaining an individual who is otherwise eligible for release from custody solely on the basis of 6 an ICE detainer request. S.F. Admin. Code § 12I.3; SAC ¶¶ 22-24.2 As the Court recognized, “the

7 rights of states and local governments to determine their own local policies and enforcement

8 priorities” implicates a constitutional interest under the Tenth Amendment. PI Order at 27.

9

Second, the Executive Order appears to require jurisdictions to comply with detainer requests

10 or face loss of federal funds and other enforcement action. The Executive Order—and the AG

11 Memorandum—define “sanctuary jurisdictions” as jurisdictions that “willfully refuse to comply with

12 8 U.S.C. 1373.” Section 9(b) equates “sanctuary jurisdictions” with jurisdictions that refuse to comply

13 with detainers. And Attorney General Sessions has suggested that a policy prohibiting compliance

14 with detainers would violate Section 1373 as well as “hinder the enforcement of federal law.” PI Order

15 at 20-21 (citing Sessions Press Conference at 2). San Francisco thus has a reasonable belief that its 16 laws will trigger defunding and enforcement action under the Executive Order.3

17

Third, Defendants have indicated a specific intent to enforce the Executive Order against

18 San Francisco. In a recent joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court,

19 Attorney General Sessions and Secretary Kelly stated: “Some jurisdictions, including the State of

20 California and many of its largest counties and cities, have enacted statutes and ordinances designed to

21

22

2 Importantly, an ICE detainer request is distinct from a criminal warrant, which San Francisco honors consistent with its Sanctuary City laws. See SAC ¶ 25.

23

3 In other filings with this Court, Defendants have referenced the Government’s brief filed in

the Supreme Court of Massachusetts stating that detainers “are voluntary . . . rather than mandatory

24 commands.” Reply ISO Motion for Reconsideration (Dkt. No. 113) at 11. But on the same day that

Attorney General Sessions filed that brief, he also stated in public remarks that failure to comply with

25 detainer requests violates federal law and will render jurisdictions ineligible for DOJ grants under

Section 1373. RJN Exh. C. The AG Memorandum, meanwhile, does not even mention detainers—

26 much less clarify that federal funds will not be denied to jurisdictions that fail to comply with such

requests. But even if it did, it would not defeat San Francisco’s standing to bring a pre-enforcement

27 challenge. A well-founded fear of enforcement may be based on a reasonable interpretation of what

conduct is proscribed—even if a narrower interpretation of the statute is also available. See PI Order at

28 19 (citing Virginia v. American Booksellers, 484 U.S. 383, 392 (1988)).

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1 specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication

2 with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.”

3 RJN Exh. T. ICE has specifically identified San Francisco as a jurisdiction with policies that “Restrict

4 Cooperation with ICE.” RJN Exh. S. A memo by the Office of the Inspector General “notes that

5 San Francisco’s policy . . . could run afoul of Section 1373 unless San Francisco employees are aware

6 that they are permitted to share immigration status information with ICE.” PI Order at 20-21 (citing

7 OIG Memo [RJN Exh. F]). During a March 27, 2017 press conference, Attorney General Sessions

8 described San Francisco as a “sanctuary city.” RJN Exh. C at 1. In an op-ed recently published in the

9 San Francisco Chronicle, the Attorney General again characterized San Francisco as a “sanctuary city”

10 and implored “San Francisco and other cities to reevaluate [their] policies.” RJN Exh. U. As this Court

11 explained, “[t]hese statements indicate not only the [Government’s] belief that San Francisco is a

12 ‘sanctuary jurisdiction’ but that its policies are particularly dangerous and in need of change.” PI

13 Order at 26.

14

Accordingly, San Francisco has established a well-founded fear of enforcement sufficient to

15 demonstrate Article III standing. And because “[t]he constitutional component of ripeness overlaps

16 with the ‘injury in fact’ analysis for Article III standing” (Wolfson v. Brammer, 616 F.3d 1045, 1058

17 (9th Cir. 2010)), San Francisco has established constitutional ripeness as well. With respect to the

18 prudential component of ripeness, the Supreme Court has questioned the “continuing vitality of the

19 prudential ripeness doctrine” in light of courts’ “virtually unflagging” obligation to “decide cases

20 within [their] jurisdiction.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014).

21 Nonetheless, as this Court has already held, San Francisco’s claims are prudentially ripe:

22 “[San Francisco] challenge[s] the Executive Order as written; a decision to enforce it sparingly cannot

23 impact whether it is unconstitutional on its face. [San Francisco’s] claims do not require further factual

24 development, are legal in nature, and are brought against a final Executive Order. They are fit for

25 review.” PI Order at 34.

26

B. The Claim For Declaratory Relief Is Justiciable.

27

San Francisco has also demonstrated a well-founded fear that Defendants will take

28 enforcement action against it based on alleged violations of Section 1373. See generally PI Order at

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1 11, 20-21. For example, Attorney General Sessions’ March 27 statement urging jurisdictions to

2 comply with Section 1373—or face consequences—singled out San Francisco and its “sanctuary

3 policies.” RJN Exh. D. Representative John Culberson—the self-proclaimed “CFO of the Department

4 of Justice,” who chairs the House of Representatives subcommittee that controls DOJ spending—

5 stated that Section 1373 “bars state and local officials from interfering ‘in any way’ with requests for

6 personal immigration information by federal authorities” and that “starting this year” San Francisco

7 and other jurisdictions deemed out of compliance with Section 1373 are “in for a very unpleasant

8 surprise.” RJN Exh. E at 3-4. The OIG Memo discussed above (see p. 8, supra) specifically calls out

9 San Francisco as having laws that could run afoul of Section 1373. RJN Exh. F at 6 n.7. The Supreme

10 Court has made clear that this type of threatened action is sufficient to satisfy Article III. See

11 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (“[W]here threatened action by

12 government is concerned, we do not require a plaintiff to expose himself to liability before bringing

13 suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be

14 enforced.”). To the extent that Defendants’ Motion challenges Count One based on standing and

15 ripeness, Mot. at 10, the Court should therefore reject this challenge.

16

Defendants’ statements also belie their argument that there is “no live, concrete controversy

17 regarding whether San Francisco complies with Section 1373,” and thus any ruling on this issue would

18 “constitute a prohibited advisory opinion.” Mot. at 11. As pled in the SAC, San Francisco believes—

19 and seeks a judicial determination—that its laws comply with Section 1373. SAC ¶ 125. Defendants,

20 meanwhile, take the position that San Francisco does not comply with Section 1373. SAC ¶ 146. And

21 as noted above, they have repeatedly threatened enforcement action on this basis.

22

These facts establish both Article III jurisdiction and an actual controversy within the meaning

23 of the Declaratory Judgment Act (“Act”), 28 U.S.C. § 2201(a). The term “actual controversy” in the

24 Act refers to “‘Cases’ and ‘Controversies’ that are justiciable under Article III.” MedImmune, 549 U.S.

25 at 127. As required by Article III, the dispute over whether San Francisco complies with Section 1373

26 is “real and substantial,” and not merely “an opinion advising what the law would be upon a

27 hypothetical set of facts.” Id. Defendants’ request to dismiss San Francisco’s claims under Federal

28 Rule of Civil Procedure 12(b)(1) should be denied.

CCSF’s Opposition to Motion to Dismiss;

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II. Count One States A Viable Claim For Declaratory Relief That San Francisco Complies

1

with Section 1373.

2

Count One of San Francisco’s Second Amended Complaint requests a declaration from this

3 Court that its laws comply with 8 U.S.C. § 1373 (“Count One”). In moving to discuss Count One,

4 Defendants conflate three separate concepts: Article III jurisdiction, federal subject matter jurisdiction,

5 and the existence of a private right of action. But San Francisco has established Article III jurisdiction

6 and federal subject matter jurisdiction, and the Declaratory Judgment Act does not require plaintiffs to

7 invoke a right of action separate from the cause of action a defendant would have against the plaintiff.

8

First, as described in Section I(B), supra, San Francisco has demonstrated that there is an

9 “actual controversy” about whether its laws comply with Section 1373. This establishes Article III

10 jurisdiction and defeats Defendants’ argument that judicial resolution of Count One would be a

11 prohibited advisory opinion. See MedImmune, 549 U.S. at 127.

12

Second, the Court has subject matter jurisdiction under 28 U.S.C. § 1331. To determine federal

13 question jurisdiction in a declaratory relief action, courts “look to the ‘character of the threatened

14 action’. . .[t]hat is to say. . . whether ‘a coercive action’ brought by ‘the declaratory judgment

15 defendant’. . . ‘would necessarily present a federal question.’” Medtronic, Inc. v. Mirowski Family

16 Ventures, LLC, 134 S. Ct. 843, 848 (2014) (internal citations omitted). Here, if Defendants brought an

17 action against San Francisco to secure compliance with 8 U.S.C. § 1373, it would be an action “arising

18 under the Constitution, laws, or treaties of the United States” and by definition would present a federal

19 question that this Court has jurisdiction to adjudicate. See 28 U.S.C § 1331.4

20

Third, “‘it is the underlying cause of action of the defendant against the plaintiff that is actually

21 litigated in a declaratory judgment action.’” Shell Gulf of Mexico Inc. v. Center for Biological

22 Diversity, Inc., 771 F.3d 632, 636 (9th Cir. 2014) (quoting Collin County, Tex. v. Homeowners Ass'n

23 for Values Essential to Neighborhoods, (HAVEN) 915 F.2d 167 (5th Cir. 1990). As Defendants have

24 repeatedly noted, they could bring civil preemption actions against jurisdictions to enforce Section

25 1373. See, e.g., RJN Exh. G at 8. Accordingly, San Francisco does not need a separate cause of action

26 4 Defendants argue that “[t]he general jurisdictional statutes that [San Francisco] cites, 28
27 U.S.C. §§ 1331 and 1346 [], do not create independent causes of action.” Mot. at 11. This is correct, but irrelevant. San Francisco does not argue that they create an independent cause of action, simply
28 that they confer subject matter jurisdiction.

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1 to litigate its declaratory judgment claim. Defendants’ argument that a plaintiff must assert an

2 independent cause of action to bring a claim for declaratory relief ignores the purpose of the

3 Declaratory Judgment Act and attempts to create an obligation that does not exist. See generally

4 Societe de Conditionnement v. Hunter Engineering Co., 655 F.2d 938, 943 (9th Cir. 1981) (noting that

5 the purpose of the Declaratory Judgment Act is “to relieve potential defendants from the Damoclean

6 threat of impending litigation which a harassing adversary might brandish, while initiating suit at his

7 leisure—or never”).

8

None of Defendants’ authority is to the contrary. Most of the cited cases do not concern

9 declaratory relief at all. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001); Strong v. Ford, 108

10 F.3d 1386 (9th Cir. 1997) (unpublished); White v. Paulsen, 997 F. Supp. 1380, 1382 (E.D. Wash.

11 1998). In one Fifth Circuit case, the plaintiff did not contend that the underlying state statute created a

12 cause of action that could be enforced by anyone, plaintiff or defendant. Harris Cty. Texas v.

13 MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015). And in a district court case, the court simply

14 observed that “[d]eclaratory relief is not an independent cause of action” and the Declaratory

15 Judgment Act “does not itself confer federal subject-matter jurisdiction.” Muhammad v. Berreth, No.

16 C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012). No one disagrees with this

17 straightforward proposition. It is simply irrelevant. As noted above, there is federal question

18 jurisdiction here and a cause of action exists because Defendants could sue San Francisco to ensure

19 compliance with Section 1373.

20 III. 21

Count Two States A Viable Claim That The Funding Restriction Violates Separation Of Powers Principles, The Spending Clause, And The Tenth Amendment.

22

Count Two states that the Executive Order’s funding restriction violates the United States

23 Constitution’s separation of powers principles, Spending Clause, and Tenth Amendment. To survive

24 Defendants’ motion to dismiss, San Francisco need only show that this claim is “‘plausible on its

25 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The claims

26 alleged in the SAC more than meet this burden. Indeed, the Court has already reviewed these claims

27 under the more exacting preliminary injunction standard and held that San Francisco is likely to

28 succeed on merits of each claim. See PI Order at 35-44. Defendants nonetheless argue that

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1 San Francisco cannot plead viable challenges against the Executive Order because it “is an internal

2 Executive Branch policy directive.” Mot. at 12-13. Defendants also argue that San Francisco’s

3 challenge to the Funding Restriction should be dismissed because the Funding Restriction—“as

4 elucidated by the AG Memorandum”—is not facially unconstitutional. Mot. at 13-22. They are wrong.

5 The Executive Order is more than an internal policy directive and has a direct impact on

6 San Francisco. The AG Memorandum does not “elucidate” the Executive Order because it is not an

7 authoritative interpretation, a binding statement about implementation, or even a conceivable

8 constitutional application of the Executive Order. Instead, the AG Memorandum simply indicates that

9 the DOJ will not implement the plain text of the Executive Order and says nothing about how other

10 agencies will implement it. This does not cure the constitutional infirmities identified by the Court.

11

A. The Executive Order Is More Than An Internal Directive, And It Is Subject To

12

Judicial Review.

13

Defendants argue that the Court should dismiss both of San Francisco’s counts concerning the

14 constitutionality of the Executive Order (Counts Two and Three) because the Order is merely an

15 internal policy directive concerning implementation of existing law and does not directly affect

16 San Francisco. This argument is both factually and legally flawed.

17

Defendants’ argument is factually flawed because it fails in its underlying premises. As an

18 initial matter, the notion that the Executive Order does not affect San Francisco is spurious. The Order

19 seeks to “undermine [local policy] judgment by attempting to compel [jurisdictions] to change their

20 policies and enforce the Federal government’s immigration laws” (PI Order at 28) by threatening to

21 withhold federal funds and initiate unspecified enforcement action. As the Court has already

22 concluded, this directly harms San Francisco by impairing its sovereign interest in creating and

23 enforcing its own legal code (id. at 27 (citing Alfred L. Snapp & Son, 458 U.S. at 601)) and by creating

24 budgetary uncertainty that impacts the City’s ability to budget and plan for the future (id. at 29-30).

25

Moreover, the plain text of the Executive Order makes clear that it does more than just provide

26 the Attorney General and Secretary of DHS direction “regarding their exercise of existing statutory

27 and constitutional authority.” Mot. at 12 (emphasis on original). As this Court explained, Section 9(a)

28 //
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directs the Attorney General and the Secretary to ensure that “sanctuary

1

jurisdictions” are “not eligible to receive” federal grants. EO §9(a)(emphasis

added). Whether a jurisdiction is eligible to receive federal grants is determined

2

by the conditions on those grants and the characteristics, acts, and choices of the

jurisdiction. See BLACK’S LAW DICTIONARY 634 (10th ed. 2014) (defining

3

“eligible” as “Fit and proper to be selected or to receive a benefit.”). Section

9(a)’s language directing the Attorney General and Secretary to ensure that

4

jurisdictions that “willfully refuse to comply” with Section 1373 are “not

eligible” for federal grants therefore purports to delegate to the Attorney

5

General and the Secretary the authority to place a new condition on federal

grants, compliance with Section 1373.

6

7 PI Order at 14. The ability to place new conditions on federal grants is an (unconstitutional) expansion

8 of the authority of the Attorney General and Secretary. Thus, the Executive Order—which purports to

9 hand them this authority—is more than an internal policy directive concerning implementation of

10 existing law. Defendants’ attempt to characterize it as such fails. See generally PI Order at 14-15 (“If

11 Section 9(a) does not direct the Attorney General and Secretary to place new conditions on federal

12 funds then it only authorizes them to do something they already have the power to do, enforce existing

13 grant requirements. . . But a construction so narrow that it renders a legal action legally meaningless

14 cannot possibly be reasonable and is clearly inconsistent with the Order’s broad intent.”).

15

Defendants’ argument is legally flawed as well. To the extent Defendants argue that the fact

16 the Executive Order is framed as a direction to other officers of the U.S. federal government precludes

17 judicial review, they are wrong. Indeed, the executive order at issue in the seminal case of Youngstown

18 Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), was similarly framed as a directive to an Executive

19 Branch official, yet the Supreme Court reviewed—and ultimately struck down—the order. And

20 Defendants’ reliance on Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal.

21 May 19, 1995), and Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979),

22 is perplexing. See Mot. at 12. Those cases state that executive orders lacking specific statutory or

23 congressional authorization do not have the full force of law—meaning they create no private right of

24 action that can be enforced in court. Chen, 1995 WL 317023, at *5; Legal Aid Society of Alameda

25 County, 608 F.2d at 1330 & n.14. But this is irrelevant. San Francisco’s complaint does not seek to

26 //

27 //

28 //
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1 enforce the Executive Order; it challenges the Executive Order. Defendants cite no authority 2 supporting the proposition that the validity of such orders cannot be challenged in court.5

3

For all of these reasons, the Court should reject Defendants’ argument that San Francisco fails

4 to state a viable claim challenging the Executive Order because the order is an internal directive.

5

B. The Funding Restriction Is Facially Unconstitutional.

1. The Court Already Found That The Funding Restriction Likely Violates

6

Separation of Powers, The Spending Clause, And The Tenth Amendment.

7

As the Court recognized in its PI Order, “Section 9 purports to give the Attorney General and

8 the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not

9 provided for by Congress.” Id. at 36. But the federal spending power belongs to Congress, not the

10 President. U.S. Const. art. I, § 8, cl.1. The President cannot amend funding statutes (Clinton v. City of

11 N.Y., 524 U.S. 417, 438 (1998)), and cannot withhold appropriated funds without Congress’s approval,

12 Impoundment Control Act of 1974, 2 U.S.C. §§ 683 et seq. Section 9’s attempt to impose a new

13 funding condition “is an improper attempt to wield Congress’s exclusive spending power and is a

14 violation of the Constitution’s separation of powers principles.” PI Order at 37.

15

Even if the President did have the Spending Power, Section 9 would exceed the scope of that

16 power and therefore violate the Tenth Amendment. Id. at 37. As the Court held, Section 9 violates the

17 Spending Clause in at least three different ways. First, it imposes a new funding condition without

18 stating that condition unambiguously and in advance “so that states and local jurisdictions

19 contemplating whether to accept such funds can ‘exercise their choice knowingly, cognizant of their

20 participation.’” Id. (quoting S. Dakota v. Dole, 483 U.S. 203, 203 (1987)). Second, “its attempt to

21 condition all federal grants on compliance with Section 1373 clearly runs afoul of the nexus

22 5 The only case they cite in this regard—United States v. Pickard, 100 F. Supp. 3d 981 (E.D.
23 Cal. 2015)—is entirely inapposite. There, several individuals who had been indicted for conspiracy to manufacture marijuana sought to dismiss their indictments. Id. at 988-89. They argued, inter alia, that
24 a memorandum to United States Attorneys from the Deputy Attorney General, which described eight enforcement priorities to guide enforcement of the Controlled Substances Act (“CSA”), violated the
25 Tenth Amendment by imposing a disparate impact on states depending on the legal status of marijuana within the jurisdiction. Id. at 1011. The court concluded that it did not, noting that the memorandum
26 did “not circumscribe the DOJ’s ability to prosecute drug offenses under the CSA in any state,” that it was not binding and was instead “‘intended solely as a guide’ for prosecutors in their exercise of
27 discretion,” and that “federal prosecutors retain[ed] exclusive authority and absolute discretion to decide whether to prosecute a case.” Id. (internal quotation marks omitted). This says nothing about
28 whether a viable claim can be raised challenging the Executive Order at issue here.

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1 requirement” that “‘Congress may condition grants under the spending power only in ways

2 reasonabl[y] related to the purpose of the federal program.’” Id. at 38 (quoting Dole, 483 U.S. at 213).

3 Third, threatening to withhold all federal grants is an unconstitutionally coercive “gun to the head.” Id.

4 at 39 (quoting Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012)).

5

Finally, the court held that San Francisco was likely to succeed on its claim that the Executive

6 Order violates the Tenth Amendment by seeking to compel state and local jurisdictions to comply with

7 detainer requests, under threat of losing federal grants or facing enforcement action. Id. at 40. As the

8 Court recognized, this is an unconstitutional attempt to force state and local jurisdictions to administer

9 federal immigration law. Id. at 39.

10

2. The Court Should Not Rely On The “Elucidations” Offered By The AG

Memorandum.

11

12

Defendants make no attempt to defend this plain text reading of the Executive Order or

13 respond to the Court’s analysis. Instead, they argue that “as elucidated by the AG Memorandum,” the

14 Funding Restriction is constitutional. Yet the AG Memorandum does not and cannot rewrite the

15 Executive Order, which is what would be required to cure the constitutional infirmities identified by

16 the Court. When the Administration has recognized constitutional problems with an Executive Order

17 in similar cases, it has withdrawn the offending Order or issued a clarifying memorandum from the

18 President himself to attempt to address the issue. See RJN Exhs. H at Section 1(i), I. Defendants’

19 failure to follow those procedures here underscore the limited import of the AG Memorandum.

20

Instead of rewriting the Executive Order, the AG Memorandum effectively states that DOJ will

21 not implement the Executive Order as required by its text and will instead implement other statutes—

22 namely, existing funding statutes that permit 1373 funding conditions. Yet an agency’s “voluntary

23 self-denial” of powers granted by an unconstitutional law does not save that law. Whitman v. Am.

24 Trucking Associations, 531 U.S. 457, 472–73 (2001); see also Knox v. Service Employees Intern.

25 Union, 567 U.S. 298, 307 (2012) (“The voluntary cessation of challenged conduct does not ordinarily

26 render a case moot because a dismissal for mootness would permit a resumption of the challenged

27 conduct as soon as the case is dismissed.”). As Supreme Court has explained, it “would not uphold an

28 unconstitutional statute merely because the Government promised to use it responsibly.” United States

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1 v. Stevens, 559 U.S. 460, 480 (2010). The Constitution “protects against the Government; it does not

2 leave us at the mercy of noblesse oblige.” Id.; see also Comite de Jornaleros de Redondo Beach v. City

3 of Redondo Beach, 657 F.3d 936, 946–47 (9th Cir. 2011) (“We cannot simply ‘presume[] the [City]

4 will act in good faith and adhere to standards absent from the ordinance’s face.’”).

5

Defendants attempt to characterize the AG Memorandum as something other than a promise

6 not to implement the Executive Order, but none of their characterizations are persuasive. It is unclear

7 whether Defendants rely on the AG Memorandum as a narrowing construction of the Executive Order

8 or a binding directive about implementation of the Executive Order, but the AG Memorandum cannot

9 do the work Defendants would have it do under any of these theories.

10

a. The AG Memorandum Is Not An Authoritative Interpretation Of

The Executive Order.

11

12

For the most part, the AG Memo simply repeats the arguments Defendants made at the PI

13 Hearing. The Court has already determined that the Executive Order is “not readily susceptible to the

14 Government’s narrow interpretation,” and that reading it as the Government proposed would

15 “‘require[] rewriting, not just reinterpretation.’” PI Order at 14 (quoting U.S. v. Stevens, 559 U.S. 460,

16 481 (2010)). Specifically, the Court concluded that reading the Executive Order as Defendants

17 proposed—i.e., as not giving the Attorney General or the Secretary of DHS any new authority and

18 applying only to limited grants administered by DOJ or DHS—is inconsistent with the plain text of

19 Section 9(a) as well as the “structure and language” of other provisions of the Executive Order. Id. at

20 15; see also id. at 14 (“While the Government urges that the Order ‘does not purport to give the

21 Secretary or Attorney General the unilateral authority’ to impose new conditions on federal grants, that

22 is exactly what the Order purports to do.”); id. at 15 (“At the hearing, Government counsel argued that

23 the Order applies only to grants issued by the Department of Justice and the Department of Homeland

24 Security because it is directed only at the Attorney General and Secretary of Homeland Security. This

25 reading is similarly implausible.”).

26

The Court therefore rejected the narrowing construction proposed by the Attorney General at

27 the preliminary injunction hearing, and reiterated in the AG Memorandum. As the Court recognized,

28 “[i]t is not the job of the courts ‘to insert missing terms into the statute or adopt an interpretation

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1 precluded by [its] plain language.’” PI Order at 13 (quoting Foti v. City of Menlo Park, 146 F.3d 629,

2 639 (9th Cir. 1998)). And to what end? Adopting the Attorney General’s construction would so narrow

3 the Executive Order that it would deprive it of any legal force. Id. at 15-16. It would also “transform

4 an Order that purports to create real legal obligations into a mere policy statement and would work to

5 mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self

6 cancelling and carries no legal weight.” Id. at 16.

7

Defendants offer no reason for the Court to reconsider this analysis, and do not argue that the

8 Court must defer to the AG Memo as an agency interpretation. See Reply ISO Motion for

9 Reconsideration at 5 fn. 6 (“[T]he rules of judicial deference are inapplicable.”). Instead, they argue

10 that the AG memorandum is relevant because it purportedly binds other agencies. Id. (“[T]the issue

11 here is not whether this Court is bound by the Attorney General’s determination as to the scope and

12 meaning of the grant eligibility provision, but rather whether other federal agencies are bound by it.)

13 Yet as discussed below, the AG Memorandum does not bind anyone.

14

b. The AG Memorandum Is Not Binding Guidance About

Implementation Of The Executive Order.

15

16

Defendants characterize the AG Memorandum as “authoritative, binding guidance” for all

17 executive agencies (Mot. at 2), but it is neither authoritative nor binding. As a threshold matter, the

18 Memorandum is not guidance for anyone outside DOJ because it is not directed to anyone outside the

19 DOJ. As its title states, it is a “Memorandum for All Department Grant-Making Components.” This

20 stands in stark contrast with memoranda that are, in fact, addressed to all Executive Departments and

21 Agencies. See, e.g., RJN Exh. J (“Memorandum for Heads of All Federal Departments and Agencies”

22 regarding Section 508 of the Rehabilitation Act). If the Memorandum were truly intended to “advise

23 executive department heads” in a “formal, conclusive manner [about] the administration’s

24 interpretation of Section 9(a) of the Executive Order” (Mot. at 7), it would fail at the outset by not

25 being directed to these department heads.

26

Even if the Memorandum were addressed more broadly, it would still be an implementation

27 memorandum, not a formal opinion. It does little more than summarize the relevant terms of the

28 Executive Order and direct the DOJ how to implement it. It offers no legal analysis or opinion

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1 regarding, for example, the scope of 1373 or constitutional limits of the Executive Order.

2

Accordingly, none of the authority Defendants cite is relevant to whether and to what extent

3 the AG Memorandum binds other Executive Branch agencies and officials. Defendants rely on 28

4 U.S.C. § 512, which permits a department head to request and obtain an AG opinion on a “question of

5 law arising in the administration of his department,” but they do not suggest that the AG Memorandum

6 issued in response to such a request. See Mot. at 7. Nor is the memo a controlling ruling about a 7 question of immigration law, as described by the INA.6 See 8 U.S.C. § 1103(a)(1); see, e.g., Narenji v.

8 Civiletti, 617 F.2d 745 (D.C. Cir. 1980). Defendants also cite 28 C.F.R. Section 0.5(c), which

9 describes the AG’s role in providing “formal and informal” advice and opinions “on legal matters.”

10

At best, these statutes and regulations raise the question of what it looks like when the Attorney

11 General issues formal opinions and advice. That question is answered by 28 C.F.R. Section .25—not

12 cited by Defendants—which delegates to the Office of Legal Counsel responsibility for the duties 13 described in 28 U.S.C. § 512 and 28 C.F.R. Section 0.5(c).7 Indeed, the one case cited by Defendants

14 to demonstrate that “the Attorney General’s legal opinions are treated as authoritative by the heads of

15 executive agencies” involved a formal memorandum issued by the Office of Legal Counsel (“OLC”)

16 concerning a matter of law, namely the “Constitutional Limitations on Federal Government

17 Participation in Binding Arbitration.” Tenaska Washington Partners II, L.P. v. United States, 34 Fed.

18 Cl. 434, 439 (1995). Yet despite Defendants’ insistence that the AG Memorandum is a “formal” and

19 “conclusive” legal opinion, there is no indication here that it was prepared or rendered by OLC.

20

Further, even if this were a formal opinion, that would not establish that it is binding or

21 controlling on other executive branch agencies. Defendants rely on Randolph Moss’ article, Executive

22 Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, but this article

23 concludes that, “the question of whether (and in what sense) the opinions of the Attorney General, and,

24

6 Defendants cite to 8 U.S.C. § 1103(c)(1), but that appears to be a typo. 8 U.S.C. § 1103(c)(1)

25 concerns the definition of a “child.” 7 The Attorney General’s website explains that the Attorney General has, by regulation,

26 “delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the

Attorney General, rendering opinions and legal advice to the various Executive Branch agencies,

27 assisting the Attorney General in the performance of his function as legal adviser to the President, and

rendering opinions to the Attorney General and the heads of the various organizational units of the

28 Department of Justice.” RJN Exh. K (citing 28 C.F.R. § 0.25).

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1 more recently, the Office of Legal Counsel, are legally binding within the executive branch remains

2 somewhat unsettled.” 52 Admin. L. Rev. 1303, 1318 (2000); see also Trevor W. Morrison, Book

3 Review: Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1711 n.90 (2011) (“[T]here has long been

4 some uncertainty about the technical legal bindingness of Attorney General and OLC legal advice.”);

5 Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L.

6 Rev. 696, 739 (2007) (noting that “strikingly limited statutory or even executive authority supports the

7 proposition that the Attorney General’s opinions on legal matters are entitled to controlling status”).

8

Defendants do not even argue that the issuance of the AG Memorandum binds the Attorney

9 General’s hands going forward. Nor could they. In the absence of a court order, nothing at all prevents

10 the Attorney General from interpreting or applying the Executive Order more broadly in the future.

11 And there is particular reason to be concerned about the possibility here. The current narrow

12 construction appears to have been formulated in response to this lawsuit and the Court’s ruling. The

13 Executive Order issued on January 25, 2017. But Defendants did not articulate any narrowing

14 principles until the hearing on the preliminary injunction, and the Attorney General did not issue the

15 AG Memorandum until the eve of the deadline to file a motion for reconsideration of the Court’s PI

16 Order. In similar circumstances, courts have looked askance at changes in conduct adopted in response

17 to litigation and judicial scrutiny. See Discontinued Official Action, 13C Fed. Prac. & Proc. Juris. §

18 3533.7 (3d ed. 2017) (collecting cases).

19

Moreover, the Attorney General has not disavowed the constitutionality of a broader

20 construction or even repeated counsel’s prior assertion that the narrow construction is the only fair

21 reading of the text. The AG Memorandum simply states how he has “determined Section 9(a) of the

22 Executive Order . . . will be applied” (AG Memorandum at 1)—leaving him free to embrace a

23 different construction in the future. And there is good reason to think that the Attorney General will

24 later change course. Defendants’ current assertion that the Executive Order applies to only limited

25 funds is inconsistent with their prior statements indicating that the Order was significantly more far

26 reaching. See p. 3, supra; PI Order at 3 (noting that “if there was doubt about the [broad] scope of the

27 Order, the President and the Attorney General have erased it with their public comments”). And on the

28 same day that Attorney General Sessions stated in public remarks that failure to comply with detainer

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1 requests violates federal law and will render jurisdictions ineligible for Department of Justice (“DOJ”)

2 grants under Section 1373 (RJN Exh. C at 2-3), he also filed a brief in the Supreme Court of

3 Massachusetts stating that detainers are “voluntary.” See Br. of the United States as Amicus Curiae at

4 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651 at *22 (Mass. Mar. 27, 2017). As the Ninth

5 Circuit recently held in Washington v. Trump, 847 F.3d 1151 (2017), such “shifting interpretations” of

6 an Executive Order render it impossible to conclude that “the current interpretation . . . even if 7 authoritative and binding, will persist past the immediate stage of these proceedings.” Id. at 1166.8

8

As discussed above, Defendants could have amended or reissued the Executive Order, but they

9 did not. Defendants could have offered a formal Attorney General opinion through OLC or

10 authoritative guidance in a Presidential memorandum, but they did not. If Defendants were truly

11 willing to be bound by the AG Memorandum’s proposed implementation, they could have proposed

12 incorporating these terms into a stipulated injunction, but they have not. The failure to take such

13 actions leaves Defendants completely free to change their implementation at any time.

14

3. The AG Memorandum Is Not A Constitutional Application Of The

15

Executive Order That Defeats A Facial Challenge Under Salerno.

16

Finally, Defendants rely on United States v. Salerno, 481 U.S. 739 (1987), to argue that the

17 SAC “fails to establish that Section 9 of the Executive Order would be invalid under all

18 circumstances,” Mot. at 14, but Defendants do not identify a single circumstance under which

19 application of the Executive Order itself would be valid. Instead, they point to the AG Memorandum’s

20 proposed application of Congressional funding statutes that exist independently of the Executive

21 Order. See, e.g., Mot. at 15. The validity of these statutes is not at issue in this litigation, and

22 application of these statutes is not an application of the Executive Order.

23 8 Notably, President Trump’s recent tweets concerning the “travel ban” at issue in Washington
24 v. Trump highlight the frequency with which Defendants change position with respect to Executive Orders. Although President Trump issued an amended order in March 2017, he declared in a June 5th
25 Twitter post that “‘[t]he Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.’” He continued by stating that “[t]he Justice
26 Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court & seek much tougher version!’” Gabrielle Levy, Trump Criticizes Justice Department Over His Travel
27 Ban, US News & World Report (June 5, 2017), https://www.usnews.com/news/nationalnews/articles/2017-06-05/trump-criticizes-justice-department-over-his-travel-ban (quoting President
28 Trump’s June 5, 2017 tweets”).

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1

The Ninth Circuit and Supreme Court rejected an almost identical argument in Patel v. City of

2 Los Angeles, 738 F.3d 1058, 1065 (9th Cir. 2013) (en banc), aff'd sub nom. City of Los Angeles, Calif.

3 v. Patel, 135 S. Ct. 2443 (2015). There, Plaintiffs brought a Fourth Amendment facial challenge to a

4 municipal law that provided that hotel guest records “shall be made available to any officer of the

5 Los Angeles Police Department for inspection.” The City argued the law could be constitutionally

6 applied if, for example, there were exigent circumstances, the hotel consented to the search, or the

7 police acted pursuant to a valid warrant. Id. at 2450-51. The Court observed this “misunderstands how

8 courts analyze facial challenges.” Id. at 2451. It explained that when assessing whether a law can be

9 applied constitutionally the Court considers only applications where the challenged law itself

10 authorizes or prohibits the conduct at issue. Actions authorized by other statutes are irrelevant to this

11 analysis: 12 13 14 15 16

[W]hen addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.

17 Id.

18

Similarly, here, the existence of other laws that might allow Defendants to condition specific

19 grants on compliance with Section 1373 does not mean that the Executive Order is immune from a

20 facial challenge. Defendants can continue to do whatever other provisions of law allow them to do

21 whether the Executive Order exists or not.9 San Francisco is not challenging those applications of the

22 law. San Francisco challenges only the Executive Order and the actions specifically authorized by that

23 Order, which the Court can resolve on a facial challenge.

24

4. The AG Memorandum Does Not Eliminate The Constitutional Violations Identified By The Executive Order.

25

The AG Memorandum is, at its core, simply a statement by DOJ that it will not enforce the

26 plain terms of the Executive Order. As discussed above, the Memorandum does not and cannot rewrite

27 9 Defendants recognize as much in continuing to impose conditions under these statutes even
28 while they are enjoined from enforcing the Executive Order. See RJN Exh. L.

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1 the Executive Order, which is what would be required to save it. Yet even if the Court did view the

2 AG Memorandum as successfully editing—or, as Defendants put it, “elucidating”— the Executive

3 Order, the Executive Order would still violate the Constitution.

4

Despite Defendants’ representations to the contrary, the AG Memorandum elucidates less than

5 it obscures. It does not describe how DHS will apply the Funding Restriction. It does not describe how

6 DOJ will apply the Enforcement Provision. And it says nothing about detainers, maintaining the threat

7 that jurisdictions must comply with them in order to avoid sanctions under the Executive Order. Thus,

8 as described below, the Executive Order—even as “elucidated” by the AG Memorandum—would still

9 violate constitutional separation of powers, the Spending Clause, and the Tenth Amendment.

10

a. The Funding Restriction Still Violates The Separation Of Powers.

11

This Court previously held that “[t]he [Executive] Order’s attempt to place new conditions on

12 federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation

13 of the Constitution’s separation of powers principles.” PI Order at 37. The AG Memorandum does not

14 eliminate this concern.

15

The SAC alleges that the Executive Order violates the separation of powers by imposing a new

16 condition on jurisdictions’ eligibility to receive federal funds and creating a penalty for Section 1373

17 violations, both without Congressional authorization. SAC ¶¶ 73-74. The Memorandum states that

18 Section 9(a) will apply to DOJ and DHS grants, and it limits application to DOJ grants to those that

19 currently have express Section 1373 certification conditions and “to future grants for which the 20 Department is statutorily authorized to impose such a condition.” AG Memorandum at 2.10 The

21 Memorandum does not, however, include any such limitation for DHS grants. See Mot. at 8 (lines 7-

22 10), 14 (lines 6-9), 15 (9-13). Thus, even as purportedly narrowed by the Memorandum, the Executive

23 Order still directs DHS to withhold funds from sanctuary jurisdictions, regardless of whether Congress

24 has authorized this as a funding condition. This attempt to impose a new funding condition violates the

25 separation of powers principles identified in the Court’s Order. See PI Order at 35-37.

26 //

27 10 San Francisco does not concede that DOJ is statutorily authorized to impose such a condition
28 on any grants.

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1

b. The Funding Restriction Still Violates The Spending Clause.

2

The Court’s PI Order recognized that the Executive Order violates the Spending Clause in at

3 least three ways. The Court found that the Executive Order imposes Section 1373 compliance (1) as a

4 vague and retroactive funding condition, (2) on funds that have nothing to do with immigration

5 enforcement, and (3) on such a large quantity of federal funds that it is unconstitutionally coercive.

6 While the AG Memorandum purports to narrow the federal funds at risk, it does not diminish the first

7 and second concerns. Nor does it address the allegations in the Complaint that the Funding Restriction

8 induces state and local jurisdictions to violate the Fourth Amendment by requiring them to comply

9 with detainers, which often lack probable cause. See SAC ¶¶ 48, 82.

10

The SAC alleges that the Funding Restriction violates the Spending Clause by imposing a new

11 funding condition, without stating that condition unambiguously and in advance so that a State could 12 voluntarily and knowingly decide whether to accept the condition. See SAC ¶ 79.11 Like the Executive

13 Order, however, the AG Memorandum’s “vague language does not make clear what conduct it

14 proscribes,” leaving jurisdictions unable to “exercise their choice knowingly.” PI Order at 37-38. As

15 the Court recognized, it is not clear what conduct will lead a jurisdiction to be deemed a “sanctuary

16 jurisdiction” that “willfully refuses to comply with Section 1373.” Id. at 19-22, 41-43. The

17 Memorandum offers scant guidance on this point, merely parroting the language of the Executive

18 Order and stating that after consulting with the Secretary of Homeland Security, the Attorney General

19 has “determined that the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully

20 refuse to comply with Section 1373.’” AG Memorandum at 2. As a threshold matter, jurisdictions

21 cannot rely on the Attorney General’s definition because the Executive Order gives the Secretary—not

22 the Attorney General—the authority and discretion to designate sanctuary jurisdictions. See Executive

23 Order § 9(a). Further, the Memorandum nowhere indicates what Section 1373 requires, leaving in

24 place the threat that jurisdictions will be deemed to willfully violate Section 1373 if they have a policy

25

26

11 Defendants misread the SAC in arguing that San Francisco did not allege that the Executive

Order failed to state conditions “unambiguously.” Mot. at 17 fn. 4. San Francisco used that exact word

27 in paragraph 79 of the SAC, and even if there were doubts about how to construe the allegations of

that paragraph, the Court must resolve them in favor of San Francisco, the plaintiff. See Stapley v.

28 Pestalozzi, 733 F.3d 804, 809 (9th Cir. 2013).

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1 of not complying with detainer requests. See PI Order at 19-22. Additionally, the AG Memorandum

2 does not eliminate the concern that DHS will apply the Executive Order retroactively. The plain

3 language of the Executive Order suggests it applies to past and future funds, and unlike DOJ, DHS has

4 not offered to limit its application of the Executive Order in any way. See generally AG Memorandum

5 at 1-2.

6

The Memorandum also does not limit application of the Executive Order to funds related to

7 immigration enforcement, as required to satisfy the nexus requirement. See PI Order at 38. The SAC

8 alleges that the Funding Restriction imposes funding conditions that are not germane to the purpose of

9 the funds. SAC ¶ 80. For DHS funds, the AG Memorandum does not limit the scope of funds in any

10 way, and for DOJ funds, the Memorandum offers only vague assurances that conditions must be

11 authorized by Congress. Yet both DHS and DOJ make grants unrelated to immigration enforcement.12

12 Indeed, even some of the grants specifically identified by the AG Memorandum have nothing to do 13 with immigration enforcement.13

14

Finally, the SAC alleges that the Funding Restriction induces state and local jurisdictions to

15 violate the Fourth Amendment by requiring them to comply with detainers, which often lack probable

16 cause. See SAC ¶¶ 48, 82. Yet the AG Memorandum offers no clarity on this point.

17

c. The Funding Restriction Still Violates The Tenth Amendment.

18

In the PI Order, the Court held that “[t]he Executive Order’s threat to pull all federal grants

19 from jurisdictions that refuse to honor detainer requests or to bring ‘enforcement action’ against them

20

21

12 For instance, DHS, via the Federal Emergency Management Agency (“FEMA”), administers

grants to prepare against and provide relief from natural disasters such as earthquakes and fires. See,

22 e.g., RJN Exhs. M-O. In another example, DOJ’s Office on Violence Against Women (“OVW”)

administers grants “designed to develop the nation’s capacity to reduce domestic violence, dating

23 violence, sexual assault, and stalking by strengthening services to victims and holding offenders

accountable.” See RJN Exh. P.

24

13 See, e.g., Office of Justice Programs, Bureau of Justice Assistance, “Edward Byrne

25

Memorial Justice Assistance Grant Program,” https://www.bja.gov/jag/ (“The JAG Program provides . . . critical funding necessary to support a range of program areas including law enforcement,

26

prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and

27

crime victim and witness initiatives.”) (RJN Exh. Q); Community Oriented Policing Services, “About,” https://cops.usdoj.gov/about (“The COPS Office awards grants to hire community policing

28

professionals, develop and test innovative policing strategies, and provide training and technical assistance . . . .”) (RJN Exh. R).

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1 violates the Tenth Amendment’s prohibitions against commandeering.” PI Order at 41. The AG

2 Memorandum purports to limit the funds at risk, but otherwise leaves fully in place this threat to

3 jurisdictions that do not comply with detainers. Because the AG Memorandum is silent with respect to

4 detainer requests it does not—and indeed cannot—clarify that federal funds will not be withheld from

5 jurisdictions that fail to comply with such requests. Accordingly, even as interpreted by the AG

6 Memorandum, the Executive Order continues to violate the Tenth Amendment by coercing state and

7 local jurisdictions to comply with detainer requests.

8 IV. Count Three States A Viable Claim That The Enforcement Directive Is Unconstitutional.

9

Defendants’ arguments regarding the enforcement provision are both addressed above. First,

10 the court has jurisdiction to hear San Francisco’s claims as a pre-enforcement challenge, and

11 Defendants’ 12(b)(1) argument to the contrary fails. See Section I(A), supra. Second, the Enforcement

12 Provision can be challenged even though it is an “internal directive,” and Defendants’ 12(b)(6)

13 argument to the contrary fails. See Section III(A), supra. Defendants offer no substantive challenge to

14 this Count, and have waived any other arguments to dismiss Count Three.

15

CONCLUSION

16

For the foregoing reasons, Defendants’ Motion to Dismiss should be denied.

17 Dated: June 20, 2017 18 19 20 21 22 23 24 25 26 27

DENNIS J. HERRERA City Attorney RONALD FLYNN JESSE C. SMITH YVONNE R. MERÉ CHRISTINE VAN AKEN TARA STEELEY MOLLIE M. LEE SARA J. EISENBERG MATTHEW S. LEE NEHA GUPTA Deputy City Attorneys
By: /s/ Mollie M. Lee MOLLIE M. LEE Deputy City Attorney
Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO

28
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 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 1 of 28

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11
IN THE UNITED STATES DISTRICT COURT
12
FOR THE NORTHERN DISTRICT OF CALIFORNIA
13

14

SAN FRANCISCO DIVISION

15 CITY AND COUNTY OF SAN
FRANCISCO,

16

Plaintiff,

v.
17

18

DONALD J. TRUMP, et al., Defendants.

19

20

COUNTY OF SANTA CLARA, Plaintiff,

21

v.

REPLY IN SUPPORT OF DEFENDANTS’ MOTIONS TO DISMISS

Date: Time:

July 12, 2017 2:00 p.m.

No. 3:17-cv-00485-WHO

22 DONALD J. TRUMP, et al.,
Defendants.
23

No. 3:17-cv-00574-WHO

24 CITY OF RICHMOND,

Plaintiff,

25

v.

26 DONALD J. TRUMP, et al.,

27

Defendants.

No. 3:17-cv-01535-WHO

28

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Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 2 of 28

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES ......................................................................................................... iii

4 INTRODUCTION .......................................................................................................................... 1

5 ARGUMENT .................................................................................................................................. 2

6

I. The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch........................................................ 2

7

A. The AG Memorandum Is a Formal, Authoritative Statement..................... 2

8

B. The AG Memorandum Is Consistent With the

9

Executive Order .......................................................................................... 3

10

C. The AG Memorandum Carries Out Rather than Detracts from the Order’s Intended Effect ................................................................ 5

11

D. The Timing of the AG Memorandum Does Not

12

Undermine Its Authoritativeness................................................................. 6

13

II. Plaintiffs Lack Standing and Their Claims Are Unripe .......................................... 6

14

III. Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and

15

Does Not Necessarily Directly Affect the Plaintiffs ............................................... 9

16

IV. Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum ............................. 10

17

A. Plaintiffs Must Establish that the Grant Eligibility Provision

18

Is Unconstitutional in All Applications .................................................... 11

19

B. Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Separation of Powers........................... 13

20

C. Plaintiffs Fail to State a Viable Claim that the Grant

21

Eligibility Provision Exceeds the Spending Power................................... 14

22

D. Richmond and San Francisco Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Tenth Amendment ............... 16

23

E. Richmond and Santa Clara County Fail to State a Viable Claim

24

of Unconstitutional Vagueness under the Due Process Clause................. 17

25

F. Santa Clara County Fails to State a Viable Claim Regarding Procedural Due Process ........................................................... 18

26
G. Richmond Fails to State a Viable Claim

27

Under the Fourth Amendment .................................................................. 19

28

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i

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1

V. Richmond and San Francisco Fail to State a Viable Claim for

Declaratory Relief Regarding Their Compliance with Section 1373 ................... 20

2

CONCLUSION ............................................................................................................................. 21

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Reply: Motions to Dismiss

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1

TABLE OF AUTHORITIES

2
CASES
3
4 Abel v. United States, 362 U.S. 217 (1960) .................................................................................. 20

5 Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) ..................................................................... 17

6 Arizona v. United States, 567 U.S. 387 (2012) ................................................................................ 6

7 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) .......................................................... 19

8
Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ................. 9
9
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015)..................................................................... 12
10

11

Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ............................................................................. 7

12
Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983)............................................................................. 19

13

Fox-Quamme v. Health Net Health Plan of Or., Inc., No. 3:15-CV-01248-BR,

14

2016 WL 1724358 (D. Or. Apr. 29, 2016) ................................................................................ 20

15 Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) ........................................................................... 8

16
Gonzales v. Carhart, 550 U.S. 124 (2007) .................................................................................... 13
17
Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000) .................................................... 3
18
19 Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009) ..................... 17

20 Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) .................................. 13

21 Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) ................................................................. 16

22 Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008) ................................................... 11, 12

23 Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319 (9th Cir. 1979)................................. 9
24
Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065 (9th Cir. 1999) ................................ 4
25
La. Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016).............................. 7
26
27 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 15

28 Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) ..................................... 16

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1

Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427

2

(N.D. Cal. Oct. 10, 2012)........................................................................................................... 20

3
Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 7
4
New York v. United States, 505 U.S. 144 (1992) ........................................................................... 15
5
6 Planned Parenthood Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016) ...................... 6

7 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 11, 14

8 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ................................................. 7

9 United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) .......................................................... 3

10 United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ..................................................... 9
11
United States v. Salerno, 481 U.S. 739 (1987) .............................................................. 1, 11, 17, 20
12
Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013)......................................................... 18
13
14 Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ........................ 17

15 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................ 12

16 Williams v. Cty. of Alameda, 26 F. Supp. 3d 925 (N.D. Cal. 2014) ................................................ 6

17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................................................... 10 18

19 STATUTES

20 8 U.S.C. § 1103(a)(1) ................................................................................................................. 3, 14

21 8 U.S.C. § 1226 .............................................................................................................................. 20
22
8 U.S.C. § 1231 .............................................................................................................................. 20
23
28 U.S.C. § 512 ............................................................................................................................ 2, 3
24
28 U.S.C. § 516 ................................................................................................................................ 3
25

26 REGULATIONS

27
2 C.F.R. § 200.341 ......................................................................................................................... 19
28

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1 28 C.F.R. § 0.5(c)............................................................................................................... 1, 2, 3, 14

2 28 C.F.R. pt. 18 .............................................................................................................................. 19 3 4 EXECUTIVE ORDERS

5 Exec. Order No. 10,340, 17 Fed. Reg. 3139 (1952) ...................................................................... 10

6 Exec. Order No. 13,129, 64 Fed. Reg. 36,759 (1999) ................................................................... 10

7 Exec. Order No. 13,466, 73 Fed. Reg. 36,787 (2008) ................................................................... 10
8
Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (2017) ................................................. 4, 5, 11, 13, 15
9

10 OTHER AUTHORITIES

11 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

Plaintiffs devote much of their opposition briefs to attempting to undermine the Attorney

3 General’s Memorandum of May 22, 2017 (“AG Memorandum”). This is perhaps unsurprising

4 given the Memorandum’s conclusive effect. As an authoritative statement on the key provisions

5 of Executive Order 13,768, the AG Memorandum eliminates the supposed “budgetary uncer-

6 tainty” on which Plaintiffs primarily base their assertions of standing and ripeness. The AG

7 Memorandum also bolsters the conclusion that the Executive Order is consistent with the

8 Constitution.

9

Indeed, the AG Memorandum is authoritative because it is a formal statement by the

10 Cabinet official responsible for “[f]urnish[ing] advice and opinions . . . on legal matters to the

11 President and the Cabinet and to the heads of the executive departments and agencies of the

12 Government.”1 Every aspect of the AG Memorandum is supported by language in the Executive

13 Order, the goal of which is to establish a policy of faithful enforcement of federal immigration

14 law. Consistent with that purpose, the AG Memorandum clarifies that the grant eligibility

15 provision in Section 9(a) of the Order will be applied only where the Department of Justice and

16 the Department of Homeland Security are statutorily authorized to do so. In short, the Executive

17 Order and the AG Memorandum simply apply existing law.

18

Especially in light of the AG Memorandum, the Executive Order is consistent with the

19 constitutional Separation of Powers, the Spending Clause, the Tenth Amendment, and the other

20 constitutional provisions cited in Plaintiffs’ complaints. This is especially true given that Plain-

21 tiffs challenge the Order on its face, “the most difficult challenge to mount successfully.” In this

22 context, plaintiffs “must establish that no set of circumstances exists under which the [challenged

23 enactment] would be valid.”2 Plaintiffs cannot, however, show that the grant eligibility provision

24 would violate the Constitution in all of its applications. Nor have San Francisco or Richmond

25 identified a right of action to seek a judicial declaration that they comply with 8 U.S.C. § 1373.

26 Finally, there is no live controversy regarding whether they comply with that statute.

27

28

1 28 C.F.R. § 0.5(c).

2 United States v. Salerno, 481 U.S. 739, 745 (1987).

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1

Accordingly, Plaintiffs’ claims should be dismissed.

2
3
I.
4

ARGUMENT
The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch

5

A. The AG Memorandum Is a Formal, Authoritative Statement

6

Plaintiffs attempt to equate the AG Memorandum with the representations of Defendants’

7 counsel at oral argument on the motions for preliminary injunction, asserting that the Memoran-

8 dum “merely reduces that same . . . argument to writing” (SC Opp. at 9; see Richmond Opp. at 9;

9 SF Opp. at 16). They also argue that the Court has already rejected the “reading” of the Execu-

10 tive Order conveyed in the AG Memorandum (SF Opp. at 16; Richmond Opp. at 8).

11

Plaintiffs fail to acknowledge, however, that the AG Memorandum and the representations

12 of counsel are fundamentally different. Counsel for Santa Clara County made this very point at

13 oral argument: “[W]ith all deference, what a Justice Department lawyer down the food chain

14 says, without a declaration, without an affidavit, without any binding effect, is not something that

15 you should consider . . . . I didn’t hear that Attorney General Sessions had signed off to this new

16 interpretation.” Tr. of Oral Arg. at 11:9-12, 46:1-3, City & Cnty. of San Francisco v. Trump, No.

17 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017).

18

The AG Memorandum is far more than the representation of “a Justice Department lawyer

19 down the food chain.” Nor does it merely “repeat” counsel’s representations “in a written form,”

20 as might a letter from counsel (SC Opp. at 1; Richmond Opp. at 9).3 Rather, the AG Memoran-

21 dum is a formal, authoritative statement by a member of the President’s Cabinet, and the single

22 official ultimately responsible for “[f]urnish[ing] advice and opinions, formal and informal, on

23 legal matters to the President and the Cabinet and to the heads of the executive departments and

24 agencies of the Government.” 28 C.F.R. § 0.5(c); see 28 U.S.C. § 512 (Attorney General’s duty

25
3 Even if the AG Memorandum adopted the arguments of counsel in their entirety, its

26 independent legal authority would be unaffected. The fact that counsel have interpreted the

Executive Order consistent with subsequent formal guidance from the Attorney General does not
27 in any way undermine the legitimacy or authority of that guidance. In other words, the fact that

28

the Department of Justice has spoken consistently about the meaning and effect of Executive Order 13,768 is not a credible argument against the AG Memorandum.

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1 to advise executive department heads on “questions of law”). The Attorney General is the “chief

2 legal advisor” to the President, United States v. Ehrlichman, 546 F.2d 910, 925 (D.C. Cir. 1976),

3 and one of the two officials charged with implementing Section 9 of the Executive Order.

4 Moreover, the statute that sets forth the “powers and duties” of the Secretary of Homeland

5 Security – the other official charged with implementing Section 9 – provides that a

6 “determination and ruling by the Attorney General with respect to all questions of law shall be

7 controlling.” 8 U.S.C. § 1103(a)(1).4 Finally, the Attorney General is responsible for

8 representing almost all federal agencies in litigation, 28 U.S.C. § 516, such that any position

9 taken by an agency contrary to the Attorney General’s guidance may not be defended in

10 litigation.

11

Plaintiffs argue that 28 U.S.C. § 512 and 28 C.F.R. § 0.5(c) cannot apply here because the

12 Attorney General has delegated his authority thereunder to the Office of Legal Counsel (SF Opp.

13 at 18; Richmond Opp. at 11). But “it is well established that the head of an agency retains the

14 authority to make final decisions for the agency even if he or she delegates the authority to make

15 these decisions to his or her subordinates.” Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1, 9

16 (D.D.C. 2000). Plaintiffs also argue that these statutory and regulatory provisions do not apply

17 here because the AG Memorandum does not contain “legal analysis” (SF Opp. at 17; Richmond

18 Opp. at 11), but there is no indication in 28 U.S.C. § 512 or 28 C.F.R. § 0.5(c) that an opinion

19 thereunder must contain any particular kind of “analysis.”

20

B. The AG Memorandum Is Consistent With the Executive Order

21

Next, Plaintiffs argue that the AG Memorandum sets forth an “implausible interpretation”

22 or “reading” of the Executive Order (SC Opp. at 8; SF Opp. at 16) that “contradicts” the Order’s

23 “plain language” (Richmond Opp. at 2). To the contrary, the Attorney General’s statements on

24 the meaning and implementation of Section 9(a) are fully supported by the language of the Order.

25

26

4 The fact that 8 U.S.C. § 1103 is the statute that generally sets forth the Secretary’s
27 powers and duties belies plaintiffs’ assertion that the Attorney General’s authority relates only to

28

“interpreting the INA” or ruling on “a question of immigration law” (SC Opp. at 10; SF Opp. at 18).

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1

First, the AG Memorandum provides that the grant eligibility provision applies “solely to

2 federal grants administered by the Department of Justice or the Department of Homeland

3 Security, and not to other sources of federal funding.” AG Mem. at 1. This is based on the

4 President’s instruction that “the Attorney General and the Secretary, in their discretion and to the

5 extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

6 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants.” Exec. Order No.

7 13,768, § 9(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017) (emphasis added). If the President had

8 intended to apply that provision to all federal agencies or to all federal grants, he would have said

9 “all federal agencies, in their discretion and to the extent consistent with law,” or “not eligible to

10 receive any Federal grants,” respectively. Nor can it be assumed that the President intended the

11 Attorney General to enforce such a prohibition across all federal agencies; if that had been the

12 intent, there would have been no need to include the Secretary in the same sentence.

13

Further, the fact that Section 2(c) of the Order refers more generally to “Federal funds,”

14 whereas Section 9(a) refers to “Federal grants,” supports the Attorney General’s conclusion that

15 the grant eligibility provision applies only to the latter (SC Opp. at 9; Richmond Opp. at 16). If

16 the President had intended Section 9(a) to apply to all types of federal funding rather than only

17 grants, he would have repeated the term “Federal funds” in Section 9 rather than changing it to

18 “grants.” Cf. Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065, 1074 (9th Cir. 1999)

19 (referring to “basic principle of statutory construction that different words in the same statute

20 must be given different meanings”).

21

Second, the AG Memorandum provides that the Department of Justice (“DOJ”) will

22 require jurisdictions applying for certain DOJ-administered grants “to certify their compliance

23 with federal law, including 8 U.S.C. § 1373,” but only where the agency is “statutorily authorized

24 to impose such a condition.” AG Mem. at 2. This is based on the President’s instruction that

25 compliance with Section 1373 be imposed as a grant condition “to the extent consistent with

26 law.” Exec. Order No. 13,768, § 9(a). That phrase would have been unnecessary – and self-

27 defeating – if the President had intended to impose a grant condition without regard to existing

28 law. Moreover, although the Order does not expressly authorize the Attorney General and the

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1 Secretary to require certification of compliance, that method of “ensuring” non-payment of grant

2 funds to non-compliant jurisdictions is logical and certainly within the “discretion” conferred by

3 the Order.5

4

Third, the AG Memorandum states that “[a]ll grantees will receive notice of their

5 obligation to comply with section 1373.” AG Mem. at 2. This language, too, is based on the

6 instruction to impose this grant condition “to the extent consistent with law.” Exec. Order No.

7 13,768, § 9(a). That phrase would have been superfluous if the President had wanted the

8 Attorney General and the Secretary to disregard the well-established procedures of federal grant-

9 making.6

10

C. The AG Memorandum Carries Out Rather than Detracts

11

from the Order’s Intended Effect

12

Further, Plaintiffs contend that the Court must not credit the AG Memorandum because a

13 directive “merely . . . to exercise authority conferred by other laws” would be without “legal

14 force” (SF Opp. at 1, 17; see Richmond Opp. at 8). In Plaintiffs’ view, an Executive Order that

15 instructs federal agencies to carry out their responsibilities under existing law would be

16 “meaningless” (SC Opp. at 9).

17

Far from it. Executive Order 13,768 was necessary precisely because the Federal

18 Government previously had failed to “exercise authority conferred by other laws.” As stated in

19 the Order itself, federal agencies had “failed to discharge” their responsibilities under the

20 immigration laws “to ensure the removal of aliens who have no right to be in the United States.”

21 Exec. Order No. 13,768, § 1. Thus, the express purpose of the Order is to “direct executive

22 departments and agencies . . . to employ all lawful means to enforce the immigration laws of the

23

5 Santa Clara County asserts that the AG Memorandum is contradicted by the Attorney

24

General’s statement that DOJ will “take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates 1373” (SC Opp. at 10; SF Dkt. No. 116-3 at 3). But a grantee’s

25 false certification of compliance with Section 1373 would constitute violation of the grant
conditions, potentially requiring a return of funds.

26

6 Nor does the AG Memorandum contradict Section 9(c) of the Order (SC Opp. at 9). The

President can direct the Office of Management and Budget to gather and disseminate information
27 regarding recipients of all federal grants for possible later attention or to affect public perception

28

and opinion, while directing specific agencies to use their discretion to impose conditions on certain federal grants, where statutorily authorized.

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1 United States.” Id. In other words, the Order reversed the policy of prior administrations and,

2 among other things, established a policy of “ensur[ing], to the fullest extent of the law, that a

3 State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373” and other federal

4 statutes. Id. § 9; see Arizona v. United States, 567 U.S. 387, 446 (2012) (noting that

5 “immigration enforcement priorities . . . change from administration to administration”).

6

Accordingly, the AG Memorandum effectuates the intent of the Executive Order – that is,

7 to direct agencies to exercise existing legal authorities – rather than “abandon[ing]” the Order (SF

8 Opp. at 1).

9

D. The Timing of the AG Memorandum Does Not

10

Undermine Its Authoritativeness

11

Lastly, Plaintiffs attack the authoritativeness of the AG Memorandum on the basis that it

12 was issued in the course of litigation and allegedly at the “last minute” (SF Opp. at 4, 19; SC

13 Opp. at 4, 12). But the timing of the Memorandum is irrelevant. The fact that it was issued

14 during the course of litigation is attributable to the premature timing of this litigation, not to the

15 Attorney General’s timing. The President signed the Executive Order on January 25, 2017, and

16 the first plaintiff – San Francisco – filed its original complaint six days later, on January 31. The

17 Order required the Attorney General to take various actions to implement Section 9(a), and, as

18 Defendants indicated in response to Plaintiffs’ motions for preliminary injunctions and in the

19 hearing on those motions, those actions had not yet been completed at the time of the hearing.

20 The fact that the Attorney General took action during the course of this ongoing litigation, in the

21 form of the AG Memorandum, does nothing to detract from the authoritativeness of the

22 Memorandum.

23 II. Plaintiffs Lack Standing and Their Claims Are Unripe

24

Especially in light of the AG Memorandum, Plaintiffs have not satisfied their burden to

25 establish the justiciability of their claims.7 See Planned Parenthood Ariz., Inc. v. Brnovich, 172

26

7 San Francisco faults the Defendants (SF Opp. at 5 n.1) for incorporating arguments

made in Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the
27 Court’s Order of April 25, 2017, which is currently pending before the Court (SF Dkt. No. 107).

28

The authority on which the City relies, which criticizes the incorporation of arguments made in connection with “a motion that is not before the Court,” Williams v. Cty. of Alameda, 26

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1 F. Supp. 3d 1075, 1085 (D. Ariz. 2016) (“The plaintiff bears the burden of establishing the

2 existence of a justiciable case or controversy, and must demonstrate standing for each claim he

3 seeks to press and for each form of relief that is sought.”) (internal quotation marks omitted). As

4 San Francisco concedes, “Defendants have not . . . officially declared San Francisco a ‘sanctuary

5 jurisdiction,’ withheld any funds pursuant to the [grant eligibility provision], or initiated other

6 enforcement action against San Francisco” (SF Opp. at 6). Those concessions are fatal, and they

7 are true of all three plaintiffs in these cases.

8

The AG Memorandum confirms that Plaintiffs’ claims are non-justiciable under these

9 circumstances. The alleged “budgetary uncertainty” on which Plaintiffs primarily base their

10 assertions of present concrete injury, Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-

11 CV-00485-WHO, 2017 WL 1459081, at *17-19 (N.D. Cal. Apr. 25, 2017), evaporates because

12 (1) the grant eligibility provision will be applied only to grants administered by DOJ and the

13 Department of Homeland Security (“DHS”) where the agency has authority to require compliance

14 with 8 U.S.C. § 1373, and (2) grant applicants will receive notice of their obligation to comply

15 with the statute. See AG Mem. at 1-2. These facts also eliminate any concern that Plaintiffs will

16 be “force[d] to change [their] policies” (Richmond Opp. at 6; see SC Opp. at 11, 15; SF Opp. at

17 6).8

18

Further, the Executive Order – especially as elucidated by the AG Memorandum – does

19 not “require jurisdictions to comply with detainer requests or face loss of federal funds and other

20

21 F. Supp. 3d 925, 947 (N.D. Cal. 2014), does not apply here, since the motion for reconsideration
is “before the Court.”

22

8 Although Richmond implies that the Court need only consider the allegations in its

complaint (Richmond Opp. at 14-20), the AG Memorandum should be considered in relation to
23 both lack of jurisdiction and failure to state a claim. For example, since a motion under Rule

24

12(b)(6) “tests the legal sufficiency” of a complaint, Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), the Court should consider outside legal authorities, such as case law, regulations, and

25 the AG Memorandum, that bear upon that issue. The Court should also consider the AG
Memorandum under judicial notice, if necessary. See La. Mun. Police Employees' Ret. Sys. v.

26 Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (“The Supreme Court has instructed that courts ruling

on a motion to dismiss ‘must consider the complaint in its entirety, as well as other sources courts
27 ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents

28

incorporated into the complaint by reference, and matters of which a court may take judicial notice.’”) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

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1 enforcement action” (SF Opp. at 7). The AG Memorandum specifies that application of the grant

2 eligibility provision will turn on compliance with 8 U.S.C. § 1373, which relates only to the

3 sharing of information. See AG Mem. at 2. In any event, the Government recently confirmed its

4 position that immigration detainer requests are “voluntary.” See Br. of the United States as

5 Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651, at *22 (D. Mass. Mar.

6 27, 2017); see also Galarza v. Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014) (rejecting contention

7 that immigration detainers are mandatory). San Francisco and San Clara County argue that that

8 confirmation is contradicted by a statement in which they claim the Attorney General said that

9 “failure to comply with detainer requests violates federal law and will render jurisdictions

10 ineligible for DOJ grants under Section 1373” (SF Opp. at 7 n.3). But that is an inaccurate

11 characterization of the Attorney General’s remarks. Although he said that refusing to comply

12 with detainer requests “frustrate[s] [the] enforcement of immigration laws” and that “jurisdictions

13 seeking or applying for Department of Justice grants [would be required] to certify compliance

14 with 1373,” he did not say that non-compliance with detainer requests would constitute non-

15 compliance with Section 1373 (Dkt. 116-3, Ex. C).

16

Finally, San Francisco and Santa Clara County have not established the justiciability of

17 their challenge to the “appropriate enforcement action” provision in Section 9(a). The Defen-

18 dants have taken no enforcement action against the Plaintiffs under that provision, and there is no

19 indication that any such action is imminent. In response, San Francisco cites a few general state-

20 ments about sanctuary policies in general and the City’s policies in particular – including a

21 statement by a member of Congress (SF Opp. at 8-9). But those statements do not indicate that

22 any “enforcement action” against the City under Section 9(a) is imminent. In any event, if the

23 United States were to initiate any judicial action against one of the Plaintiffs outside of Section

24 9(a), the defendant municipality would have an opportunity at that time to challenge the propriety

25 and merits of the action.

26

27

28

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1 III. 2

Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Necessarily Directly Affect the Plaintiffs

3

Assuming Plaintiffs could show the justiciability of their claims, all of the claims

4 challenging Executive Order 13,768 should be dismissed because the Order only directs internal

5 Executive Branch policy and does not directly affect the Plaintiffs absent a finding that they have

6 violated Section 1373. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5

7 (N.D. Cal. May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid

8 Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979); see also United

9 States v. Pickard, 100 F. Supp. 3d 981, 1011 (E.D. Cal. 2015). San Francisco and Santa Clara

10 County attempt to distinguish Chen and Legal Aid Society of Alameda County on the basis that

11 those cases dealt with whether certain executive orders “create[d] [a] private right of action that

12 can be enforced in court,” whereas the Plaintiffs here challenge an executive order (SF Opp. at

13 13-14; see SC Opp. at 16). But both conclusions proceed from the same rationale: In each

14 situation, the order is “merely an internal directive from the President to [certain Cabinet

15 officials], instructing them to exercise their statutory authority.” Chen, 1995 WL 317023, at *6.

16 If there is no private right of action to enforce an internal directive, then there cannot possibly be

17 a private right of action to challenge it, either.9

18

Richmond argues that Executive Order 13,768 “contains no language suggesting it was

19 intended to be merely an internal directive” (Richmond Opp. at 11). Yet all of the Order’s

20 mandates are directed at federal officials. Section 4 – the first section after the provisions on

21 policy and definitions – “direct[s] agencies to employ all lawful means to ensure the faithful

22 execution of the immigration laws of the United States against all removable aliens.” Section 9

23 sets forth instructions to the Attorney General, the Secretary of Homeland Security, and the

24 Director of the Office of Management and Budget. Except for statements of purpose, policy, and

25 the general construction of the Order (Sections 3 and 18), every section and subsection sets forth

26

9 San Francisco also seeks to distinguish United States v. Pickard, 100 F. Supp. 3d 981
27 (E.D. Cal. 2015). Plaintiff recognizes, however, that the court in Pickard rejected a challenge to

28

an internal memorandum that “described . . . enforcement priorities” (SF Opp. at 14 n.5). Like that memorandum, the Executive Order here sets forth “enforcement priorities.”

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1 instructions to one or more federal officials. In sharp contrast to Executive Order 13,768, other

2 orders have contained more than internal directives. One example is Executive Order 13,129,

3 which prohibited “any transaction or dealing by United States persons . . . in property or interests

4 in property” of the Taliban. 64 Fed. Reg. 36,759, § 2(a) (1999). Another example is Executive

5 Order 13,466, which provided that “United States persons may not register a vessel in North

6 Korea . . . or own, lease, operate, or insure any vessel flagged by North Korea.” 73 Fed. Reg.

7 36,787, § 2 (2008). Unlike the Executive Order involved here, those Orders were not merely

8 internal directives.

9

Finally, San Francisco argues that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

10 (1952), supports this challenge to Executive Order 13,768 because the order struck down there

11 “was similarly framed as a directive to an Executive Branch official” (SF Opp. at 13). But the

12 executive order involved in Youngstown necessarily affected the plaintiffs in that case very

13 directly, in contrast to the Order involved here. There, the President directed the Secretary of

14 Commerce to seize the facilities of certain named companies, including those of the plaintiffs.

15 See Exec. Order No. 10,340, § 1, 17 Fed. Reg. 3139 (1952). Here, in contrast, the Order only

16 directs the Attorney General and the Secretary to focus on certain aspects of their existing

17 authorities.

18 IV. 19

Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum

20

All three of the Plaintiffs challenge the grant eligibility provision under the Separation of

21 Powers and the Spending Clause (although Santa Clara County argues Spending Clause

22 principles only in the context of its Separation of Powers claim). San Francisco and Richmond

23 allege that the grant eligibility provision violates the Tenth Amendment. Santa Clara County and

24 Richmond allege that the provision is unconstitutionally vague under the Due Process Clause.

25 Finally, the County also makes a procedural due process claim, and Richmond also makes a

26 Fourth Amendment claim. All of these challenges are without merit, especially in light of the AG

27 Memorandum and the high standard for facial challenges.

28

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1

A. Plaintiffs Must Establish that the Grant Eligibility Provision

2

Is Unconstitutional in All Applications

All of Plaintiffs’ claims against the grant eligibility provision challenge its facial
3

constitutionality. As the Supreme Court has said, a facial challenge is “the most difficult
4

challenge to mount successfully”; in this context, “the challenger must establish that no set of
5

circumstances exists under which the [challenged enactment] would be valid.” United States v.
6

Salerno, 481 U.S. 739, 745 (1987). Plaintiffs argue that the Salerno principle does not apply here
7

(SF Opp. at 20-21; SC Opp. at 18-19), but this case fits comfortably within Salerno.
8

In Salerno itself, for example, the plaintiffs alleged, among other things, that the Bail
9

Reform Act’s procedures for determining whether to impose pretrial detention violated the Due
10

Process Clause on their face. 481 U.S. at 742, 751-52. The Court rejected that challenge, noting
11

that “to sustain [the procedures] against such a challenge, we need only find them adequate to
12

authorize the pretrial detention of at least some persons charged with crimes, whether or not they
13

might be insufficient in some particular circumstances.” Id. at 751 (citation and internal
14

quotation marks omitted). Applying that standard here, this Court should reject Plaintiffs’ facial
15

challenges because the grant eligibility provision can be applied constitutionally to “at least some
16

[jurisdictions]” that “willfully refuse to comply with 8 U.S.C. 1373,” Exec. Order No. 13,768,
17

§ 9(a). For example, especially in light of the AG Memorandum, there will be “at least some”
18

instances in which the agency has statutory authority to require certification of compliance with
19

Section 1373, the applicant or grantee is aware of the certification requirement beforehand,
20

compliance with Section 1373 is germane to the purposes of the particular grant, and requiring
21

such certification does not violate any “independent [constitutional] bar.” See S. Dakota v. Dole,
22

483 U.S. 203, 207-08 (1987).
23

The Court of Appeals applied Salerno to reject a facial challenge in Lanier v. City of
24

Woodburn, 518 F.3d 1147 (9th Cir. 2008). There, an applicant for a position at a public library
25

alleged that defendant’s policy requiring pre-employment drug testing violated the Fourth
26

Amendment on its face. Id. at 1149. Plaintiff argued “that there [was] no set of circumstances
27

under which the City’s policy would be constitutional as applied to every applicant for all jobs.”
28

Reply: Motions to Dismiss

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1 Id. at 1150. The court rejected that argument, holding that “a policy of general applicability is

2 facially valid unless it can never be applied in a constitutional manner. . . . As [there is] no

3 concrete reason why [defendant’s] policy could not constitutionally be applied to jobs that, for

4 example, require the operation of dangerous equipment,” the court continued, “we cannot say that

5 the policy is invalid on its face.” Id. Lanier reflects that Salerno means exactly what it says: A

6 plaintiff challenging the facial constitutionality of an enactment must establish that no set of

7 circumstances exists under which the enactment could be applied constitutionally.

8

San Francisco and Santa Clara County argue that City of Los Angeles v. Patel, 135 S. Ct.

9 2443 (2015), forecloses applying Salerno here (SF Opp. at 21; SC Opp. at 19). Patel, however,

10 involved a situation different from this case. The plaintiffs there brought a facial Fourth Amend-

11 ment challenge to a city ordinance that required hotel operators to allow law enforcement officers

12 to examine information about their guests on demand. 135 S. Ct. at 2447-48. The City argued

13 that plaintiffs’ challenge necessarily failed Salerno because some of the examinations (i.e., Fourth

14 Amendment searches) would be supported by consent, presentation of a warrant, or exigent

15 circumstances. Id. at 2450-51. The Court rejected that argument, holding that Salerno asks

16 whether the challenged enactment “’is unconstitutional in all of its applications’” – that is, in

17 those situations where the enactment must actually be applied. Id. at 2451 (quoting Wash. State

18 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)) (emphasis added).

19

The Plaintiffs here argue that Patel forecloses applying Salerno given “the existence of

20 other laws that might allow Defendants to condition specific grants on compliance with Section

21 1373” (SF Opp. at 21; see SC Opp. at 19). But this is fundamentally different from the facts in

22 Patel. Here, the challenged Order, especially as elucidated by the AG Memorandum, directs the

23 Attorney General and the Secretary to condition grants on compliance with Section 1373 only

24 where authorized by statute. In Patel, however, the ordinance required hotel operators to make

25 their records available under all circumstances, not only where independent legal bases existed to

26 require their availability. Plaintiffs’ argument would foreclose applying Salerno to any enactment

27 directing officials to apply existing law.

28

Reply: Motions to Dismiss

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1

Santa Clara County also argues that applying Salerno here would be inconsistent with the

2 Court of Appeals’ decision in Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir.

3 2014). Jackson, also, is readily distinguishable from this case. There, plaintiffs brought a facial

4 Second Amendment challenge to an ordinance that required handguns in a residence to be either

5 stored in a locked container, disabled with a trigger lock, or carried by an adult. Id. at 958.

6 Defendant argued that the facial challenge was inappropriate because plaintiffs had conceded that

7 “locked storage is appropriate in some circumstances, such as when it is foreseeable that a child

8 would otherwise gain possession of a firearm.” Id. at 961. The court rejected that argument

9 because the case did not fall within the rationales for the Supreme Court’s jurisprudence on facial

10 challenges: Specifically, the challenged ordinance was “not an example of ‘complex and

11 comprehensive legislation’ which may be constitutional in a broad swath of cases”; and the

12 constitutionality of the ordinance would not “turn on how San Francisco chooses to enforce it.”

13 Id. at 962 (quoting Gonzales v. Carhart, 550 U.S. 124, 168 (2007)).

14

In contrast, Executive Order 13,768 does fall within those rationales. The Order requires

15 DOJ and DHS to require certification of compliance with Section 1373 where it has authority to

16 do so. Such authority may exist in relation to a “broad swath” of grant programs, and any

17 disappointed applicant or grantee could bring an as-applied challenge in any particular case where

18 one of the agencies applies the grant eligibility provision. Thus, the Ninth Circuit’s decision in

19 Jackson does not undercut the application of Salerno here.

20

B. Plaintiffs Fail to State a Viable Claim that the Grant

Eligibility Provision Violates the Separation of Powers
21

As noted earlier, all three plaintiffs allege that the grant eligibility provision violates the
22

constitutional Separation of Powers. However, the Executive Order requires the Attorney
23

General and the Secretary to condition grant eligibility on compliance with 8 U.S.C. § 1373 “to
24

the extent consistent with law,” Exec. Order No. 13,768, § 9(a), and the AG Memorandum
25

confirms that compliance with Section 1373 will be imposed as a condition of grant eligibility
26

only where the agency “is statutorily authorized to impose such a condition.” AG Mem. at 2.
27

This should eliminate any facial Separation of Powers concerns, especially under Salerno.
28

Reply: Motions to Dismiss

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1

In response to these points, Santa Clara County asserts that the AG Memorandum does not

2 apply to the Department of Homeland Security’s application of the grant eligibility provision (SC

3 Opp. at 22).10 As discussed above, however, the Attorney General is responsible for “[f]urnish-

4 [ing] advice and opinions, formal and informal, on legal matters to the President and the Cabinet

5 and to the heads of the executive departments and agencies of the Government” – including the

6 Secretary of Homeland Security. 28 C.F.R. § 0.5(c). Also, the statute establishing the Secre-

7 tary’s “powers and duties” related to immigration enforcement provides that a “determination and

8 ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C.

9 § 1103(a)(1). In any event, the Executive Order itself provides that compliance with Section

10 1373 shall be imposed as a grant condition only “to the extent consistent with law,” and an action

11 taken without authority would not be “consistent with law.”

12

C. Plaintiffs Fail to State a Viable Claim that the Grant

13

Eligibility Provision Exceeds the Spending Power

14

All three plaintiffs also allege that the grant eligibility provision violates the Spending

15 Clause, or that it would violate the Spending Clause if enacted by Congress. Especially in light of

16 the AG Memorandum, the grant eligibility provision states its requirements “unambiguously”;

17 applicants and grantees will “exercise their choice knowingly, cognizant of the consequences of

18 their participation” by choosing whether to certify compliance with Section 1373, which is related

19 to at least some grant programs; the provision’s “financial inducement” is not “so coercive” as to

20 constitute “compulsion”; and “other constitutional provisions” do not provide an “independent

21 bar.” S. Dakota v. Dole, 483 U.S. 203, 207-8, 211 (1987). The fact that these are facial chal-

22 lenges is especially relevant to this claim, as Plaintiffs cannot show that the condition imposed

23 pursuant to the grant eligibility provision is unrelated to all DOJ and DHS grants, that imposition

24

25
10 Richmond quotes at length from this Court’s discussion of the Separation of Powers

26 claims in ruling on the motions for preliminary injunction (Richmond Opp. a 16-17). But that

ruling was made before issuance of the AG Memorandum, and, in any event, a court’s finding on
27 the probability of success under a motion for preliminary injunction is not a final ruling on the

28

merits. Also, Defendants have asked the Court to reconsider its ruling on the motions for preliminary injunction.

Reply: Motions to Dismiss

14

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1 of that condition will necessarily constitute compulsion, or that all potential applications of the

2 condition will be constitutionally barred.

3

In response, San Francisco argues that the AG Memorandum does not settle the meaning

4 of “sanctuary jurisdictions” because “the Executive Order gives the Secretary – not the Attorney

5 General – the authority and discretion to designate sanctuary jurisdictions” (SF Opp. at 23).

6 However, this argument confuses the elucidation of that term with the responsibility to designate

7 individual jurisdictions. The Order gives the Secretary “the authority to designate, in his discre-

8 tion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Exec. Order

9 No. 13,768, § 9(a). But the AG Memorandum does not “designate” any sanctuary jurisdictions; it

10 only clarifies what the Order says about the meaning of the term – that is, that it “will refer only

11 to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” AG Mem. at 2. And the

12 Memorandum makes clear that the Secretary was consulted on that issue.

13

San Francisco also argues that the AG Memorandum “does not limit application of the

14 Executive Order to funds related to immigration enforcement, as required to satisfy the nexus

15 requirement” (SF Opp. at 24). The “relatedness” factor of Dole cannot fairly be called a nexus

16 “requirement,” however. As the Court of Appeals has said, “This possible ground for invalidat-

17 ing a Spending Clause statute, which only suggests that the legislation might be illegitimate

18 without demonstrating a nexus between the conditions and a specified national interest, is a far

19 cry from imposing an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d

20 1062, 1067 (9th Cir. 2002).11 Thus, conditions on federal funding must only “bear some rela-

21 tionship to the purpose of the federal spending.” Id. (quoting New York v. United States, 505 U.S.

22 144, 167 (1992)). Especially in light of Salerno and the AG Memorandum, the grant eligibility

23 provision easily meets this standard. The provision will be applied, “to the extent consistent with

24 law,” only to certain grants administered by DOJ and DHS, which are, respectively, the primary

25 federal law enforcement agency and the agency responsible for the admission and removal of

26 non-citizens (and the very agency whose communication with state and local government

27

28

11 Defendants’ motions to dismiss quoted Mayweathers, but the parties’ opposition briefs ignore it.

Reply: Motions to Dismiss

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1 officials is protected by Section 1373). Any alleged departure from this aspect of Dole could be

2 raised in an as-applied challenge.

3

Lastly, Santa Clara County argues that the AG Memorandum does not eliminate

4 coerciveness concerns because it “fails to identify which DHS grants are at issue, and the County

5 relies on DHS grants for [almost] two-thirds of its Office of Emergency Services budget,”

6 amounting to “more than $5 million” for Fiscal Year 2016 (SC Opp. at 21; SC Complaint ¶ 42).

7 This, however, does not state a viable claim for violation of the Spending Clause, especially on a

8 facial challenge. The County alleges that its annual budget is approximately $6 billion (id. ¶ 27),

9 so the alleged DHS grants for the Office of Emergency Services amount to approximately .083

10 percent of the County’s overall budget. By contrast, the Eighth Circuit has held that a State’s

11 potential loss of “approximately $250 million or 12 per cent. of the annual state education

12 budget” would not constitute coercion under Dole, see Jim C. v. United States, 235 F.3d 1079,

13 1082 (8th Cir. 2000), and the D.C. Circuit has held that a State’s risk of losing something less

14 than 4% of its overall budget in the form of federal highway funds would not be unconstitu-

15 tionally coercive, see Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 178 (D.C. Cir.

16 2015). Either of those potential losses may have amounted to a large proportion of one office’s

17 budget.

18

D. Richmond and San Francisco Fail to State a Viable Claim that the

Grant Eligibility Provision Violates the Tenth Amendment
19

San Francisco and Richmond allege that the grant eligibility provision violates the Tenth

20

Amendment. This provision should cause no concern under the Tenth Amendment, since a

21

grantee’s obligation to comply with Section 1373 would arise only because of its voluntary

22

acceptance of a grant that includes the condition, and a jurisdiction can simply decline to apply

23

for such a grant. San Francisco argues that the AG Memorandum does not eliminate this concern

24

because there is still a threat that the grant eligibility provision might be used to require jurisdic-

25

tions to comply with immigration detainer requests (SF Opp. at 24-25). As noted earlier,

26

however, the AG Memorandum makes clear that application of the grant eligibility provision will

27

turn on compliance with 8 U.S.C. § 1373, which relates only to the sharing of information. See

28

Reply: Motions to Dismiss

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1 AG Mem. at 2. Even if that were not the case, a jurisdiction could avoid any concern about being

2 “commandeered” by declining to apply for a covered grant.

3

Moreover, even if the grant eligibility provision were somehow seen as related to detainer

4 requests, the claim would also fail under Salerno. Some jurisdictions believe that federal detainer

5 requests are appropriate and voluntarily choose to comply with them. Those jurisdictions are

6 obviously not being “commandeered” in violation of the Tenth Amendment. Therefore, if the

7 potential for being compelled to comply with such requests is the basis of Plaintiffs’ facial Tenth

8 Amendment claim, the claim must be dismissed because they cannot establish that the grant

9 eligibility provision would violate the Tenth Amendment in all its applications. See Salerno, 481

10 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which [the

11 enactment] would be valid”).

12

E. Richmond and Santa Clara County Fail to State a Viable Claim of

13

Unconstitutional Vagueness under the Due Process Clause

14

Richmond and Santa Clara County allege that the grant eligibility provision is

15 unconstitutionally vague under the Due Process Clause of the Fifth Amendment.12 This is an

16 especially difficult challenge to mount facially. “Outside the First Amendment context, a plaintiff

17 alleging facial vagueness must show that the enactment is impermissibly vague in all its

18 applications.” Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir.

19 2009) (internal quotation marks omitted). The plaintiff “’must prove that the enactment is vague

20 not in the sense that it requires a person to conform his conduct to an imprecise but comprehen-

21 sible normative standard, but rather in the sense that no standard of conduct is specified at all.’

22 Put another way, [the challenger] must demonstrate that the ‘provision simply has no core.’”

23 Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013) (quoting Vill. of Hoffman Estates v.

24 Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). The AG Memorandum should

25 eliminate any concern under these standards. Furthermore, as discussed in Part III above, the

26

12 Santa Clara County’s complaint also alleges that Section 6 of the Executive Order is
27 unconstitutionally vague (SC Dkt. No. 1 ¶ 141). For the reasons stated in Defendants’ motion,

28

any such claim should be dismissed (SC Dkt. No. 115 at 19-21 & n.6). The County’s opposition does not mention Section 6.

Reply: Motions to Dismiss

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1 Executive Order is an internal directive to Executive Branch officials; thus, there can be no

2 legitimate question as to whether it provides a “standard of conduct” for the plaintiffs.

3

Relying on Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013), Plaintiffs argue

4 that Defendants cannot “cure a facially unconstitutional statute by adopting an unreasonable

5 narrowing interpretation” (SC Opp. at 23; see Richmond Opp. at 20). As discussed above,

6 however, the AG Memorandum is fully consistent with the Executive Order. For example, the

7 limitation to federal grants rather than other types of funding is reflected in the President’s use of

8 “Federal funds” in Section 2 of the Order but “Federal grants” in Section 9(a); the limitation to

9 DOJ and DHS grants is reflected in the President’s references to the Attorney General and the

10 Secretary in Section 9(a); and implementing Section 9(a) by requiring grantees to certify

11 compliance with Section 1373 is based on the President’s conferral of “discretion” on the

12 Attorney General and Secretary regarding the means of implementing the grant eligibility

13 provision and his instruction to do so “consistent with law.”

14

Further, in any event, Valle del Sol is very different from this case. There, a state criminal

15 law prohibited anyone “who is in violation of a criminal offense” from taking certain action, and

16 plaintiffs brought a vagueness challenge focused on the phrase “in violation of a criminal

17 offense.” 732 F.3d at 1019. The State asserted that the phrase should be understood as meaning

18 “in violation of a law or statute,” but the court rejected that assertion, finding that the State was

19 proposing “not to adopt a narrowing construction, but rather to replace a nonsensical statutory

20 element with a different element.” Id. at 1021. That is far from the situation here. No one could

21 argue that the grant eligibility provision is “nonsensical.” The AG Memorandum merely clarifies

22 certain elements that could be understood variously – and in ways that perfectly accord with the

23 Order itself, as discussed above. Thus, Valle del Sol does not support Plaintiffs’ vagueness claim.

24

F. Santa Clara County Fails to State a Viable Claim

25

Regarding Procedural Due Process

26

Santa Clara County also alleges that the grant eligibility provision violates procedural due

27 process under the Fifth Amendment. Especially in light of the AG Memorandum, the County

28 does not have a protectable property interest in any grant funds to which the eligibility provision

Reply: Motions to Dismiss

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1 might apply, and, in any event, the applicable grant-making procedures would provide any

2 “process” that is due. Aside from whether the County might have a “legitimate claim of

3 entitlement” to certain kinds of federal funding, such as Medicaid reimbursements, the County

4 certainly does not have such a claim to discretionary grant funds provided by DOJ and DHS. See

5 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). In any event, by specifying that

6 the grant eligibility provision be implemented “consistent with law,” Section 9(a) incorporates the

7 applicable procedural requirements for making or revoking federal grants. See, e.g., 2 C.F.R.

8 § 200.341 (hearings and appeals in federal grant-making); 28 C.F.R. pt. 18 (DOJ Office of Justice

9 Programs Hearing and Appeal Procedures).

10

In response, the County relies primarily on this Court’s ruling on Plaintiff’s motion for

11 preliminary injunction (SC Opp. at 24-25). But that ruling was made without the benefit of the

12 AG Memorandum, and Defendants have asked the Court to reconsider it. The County also cites

13 Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983), for the proposition that it has a legitimate claim

14 of entitlement to “federal funds that Congress has already appropriated and directed to local

15 entities” (SC Opp. at 25). But that case addressed whether veterinarians had a property interest in

16 permits to perform a certain diagnostic test, 721 F.2d at 1183-84, not whether a jurisdiction might

17 have a property interest in “federal funds that Congress has already appropriated and directed to

18 local entities.”

19

G. Richmond Fails to State a Viable Claim under the Fourth Amendment

20

The final claim regarding the grant eligibility provision is Richmond’s claim that the

21 provision violates the Fourth Amendment. Again, however, application of the grant eligibility

22 provision will turn on compliance with 8 U.S.C. § 1373, which involves the sharing of informa-

23 tion and thus does not create any issue under the Fourth Amendment. See AG Mem. at 2.

24 Moreover, the AG Memorandum also states that the grant eligibility provision “does not call for

25 the imposition of grant conditions that would violate any applicable constitutional or statutory

26 limitation.” Id. at 1-2.

27

Further, even aside from those considerations, this claim fails the Salerno test. First, as of

28 April 2, 2017, every detainer request issued by U.S. Immigration and Customs Enforcement

Reply: Motions to Dismiss

19

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1 (“ICE”) is supported not only by a probable cause finding as to removability in the detainer form

2 itself, but also by an administrative warrant issued pursuant to 8 U.S.C. §§ 1226 or 1231, which

3 contains a probable cause finding made by ICE. See ICE, “Detainer Policy” (Mar. 24, 2017),

4 available at https://www.ice.gov/ detainer-policy. By definition, then, all such detainer requests

5 will satisfy the Fourth Amendment, see, e.g., Abel v. United States, 362 U.S. 217, 233 (1960),

6 such that a facial challenge cannot succeed. See Salerno, 481 U.S. at 745. And even without this

7 policy, because detainer requests are generally supported by probable cause findings, Richmond

8 cannot establish that complying with such requests would always violate the Fourth Amendment,

9 as necessary to sustain a facial challenge. See id. Richmond contends that the Court must accept

10 as true its allegation that the Order “requires Richmond to keep people in custody who would

11 otherwise be released” (Richmond Opp. at 19), but the Plaintiff does not – and cannot – allege

12 that such detention would always violate the Fourth Amendment.

13 V. 14

Richmond and San Francisco Fail to State a Viable Claim for Declaratory Relief Regarding Their Compliance with Section 1373

15

Aside from Plaintiffs’ challenges to the grant eligibility provision in Section 9(a),

16 Richmond and San Francisco seek a judicial declaration that they comply with 8 U.S.C. § 1373.

17 Plaintiffs do not, however, identify a right of action to seek such a declaration, and there is no live

18 controversy regarding whether they comply with Section 1373.

19

Plaintiffs argue that the Declaratory Judgment Act allows them to seek this relief (Rich-

20 mond Opp. at 21; SF Opp. at 10). “It is well-settled, however, that the Declaratory Judgment Act

21 does not create a stand-alone cause of action.” Fox-Quamme v. Health Net Health Plan of Or.,

22 Inc., No. 3:15-CV-01248-BR, 2016 WL 1724358, at *1 (D. Or. Apr. 29, 2016); see Muhammad v.

23 Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory

24 relief is not an independent cause of action or theory of recovery, only a remedy.”). Plaintiffs

25 have not pointed to any statute that provides a right of action to seek a declaration regarding their

26 compliance with Section 1373.

27

Nevertheless, San Francisco asserts that it can seek such a declaration because the United

28 States “could bring civil preemption actions against jurisdictions to enforce Section 1373” (SF

Reply: Motions to Dismiss

20

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Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 27 of 28

1 Opp. at 10). The right of the United States to bring a preemption suit, however, is based on the

2 Supremacy Clause of the Constitution. San Francisco has no such right. Furthermore, the issue

3 involved in a federal preemption suit is fundamentally different from the cause of action that

4 Plaintiffs seek to assert: In a federal preemption action brought by the United States, the issue is

5 whether a State or local government’s law or action is constitutionally preempted by federal law.

6 If the court finds that the law or action is preempted, it is enjoined. In Plaintiff’s proposed action,

7 by contrast, the issue would be whether a local government’s law violates a federal law. The

8 Constitution requires the existence of the first kind of action, but not the second.

9

Lastly, there is no live controversy regarding whether Richmond or San Francisco

10 complies with Section 1373. Plaintiffs allege that they do not comply with immigration detainer

11 requests or otherwise cooperate with federal immigration authorities. But the Defendants have

12 not taken a position on whether Richmond or San Francisco complies with Section 1373.

13

CONCLUSION

14

For the reasons discussed above and in Defendants’ motions to dismiss, all of Plaintiffs’

15 claims should be dismissed.

16 Dated: June 29, 2017

17
Respectfully submitted,
18

CHAD A. READLER

19

Acting Assistant Attorney General

20
BRIAN STRETCH

21

United States Attorney

22

JOHN R. TYLER

23

Assistant Director

24

/s/ W. Scott Simpson

25

W. SCOTT SIMPSON (Va. Bar #27487)

Senior Trial Counsel

26

27

28

Reply: Motions to Dismiss

21

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Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 28 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS
DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States in City & County of San Francisco v. Trump, et al., No. 3:17-cv-00485-WHO
DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO
DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; and UNITED STATES OF AMERICA in City of Richmond v. Trump, et al., No. No. 3:17-cv-01535-WHO
22

 
 Case 3:17-cv-00485-WHO Document 139 Filed 07/12/17 Page 1 of 7

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

7 MATTHEW S. LEE, State Bar #295247

NEHA GUPTA, State Bar #308864

8 Deputy City Attorneys

City Hall, Room 234

9 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

10 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

11 E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
13

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

FRANCISCO,

18

SECOND SUPPLEMENTAL REQUEST FOR

Plaintiff,

JUDICIAL NOTICE IN SUPPORT OF

19

PLAINTIFF CITY AND COUNTY OF SAN

vs.

FRANCISCO’S OPPOSITION TO

20

DEFENDANTS’ MOTION TO DISMISS

DONALD J. TRUMP, President of the United

21 States, UNITED STATES OF AMERICA,

Date:

July 12, 2017

JOHN F. KELLY, Secretary of United States Time:

2:00 p.m.

22 Department of Homeland Security,

Judge:

Honorable William H. Orrick

JEFFERSON B. SESSIONS III, Attorney

Dept:

Courtroom 2

23 General of the United States, DOES 1-100,

Date Filed: January 31, 2017

24

Defendants.

Trial Date: April 23, 2018

25

26

27

28
CCSF’s 2nd Supp. RJN ISO Opp. to Motion to Dismiss; CCSF v. President Trump, et al; No. 17-00485

N:\CXLIT\LI2017\171027\01205919.docx

Case 3:17-cv-00485-WHO Document 139 Filed 07/12/17 Page 2 of 7

1

REQUEST FOR JUDICIAL NOTICE

2

Plaintiff City and County of San Francisco hereby respectfully requests, pursuant to Federal

3 Rule of Evidence 201, that this Court take judicial notice of the following material in support of its

4 Opposition to Defendants’ Motion to Dismiss:

5

Attached hereto as Exhibit A is a true and correct copy of a Department of Justice press

6 release dated July 12, 2017 and titled, “Attorney General Jeff Sessions Delivers Remarks in Las Vegas

7 to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to Combat Violent

8 Crime.” This press release is available on the Department of Justice’s official government website as

9 of July 12, 2017, at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-

10 remarks-las-vegas-federal-state-and-local-law. The press release states in part:

11

Unfortunately, this cooperation has been impeded by the policies of some cities and

12

states. Some 300 jurisdictions in this country refuse to cooperate with federal

13

immigration authorities regarding illegal aliens who commit crimes — even MS-

13 gang members. These jurisdictions are protecting criminals rather than their law-

14

abiding residents.

15

Now I want to be clear about this: local police are not the problem. I know that you

want to help. The problem is that politicians have forbidden you to help. That makes

16

all of us—and especially police officers on the front lines—less safe.

17 When cities like Philadelphia, Boston, or San Francisco advertise that they have

18

these policies, the criminals take notice.

19

20

Exhibit A is judicially noticeable because the statements of Attorney General Sessions

21 contained within this exhibit are not subject to reasonable dispute, as the statements “can be accurately

22 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

23 § 201(b)(2); Cnty. of Santa Clara v. Trump, 17-CV-00485-WHO, 2017 WL 1459081, at *17 n.4 (N.D.

24 Cal. Apr. 25, 2017) (taking judicial notice of statements by Attorney General Sessions on such

25 grounds).

26

It is also judicially noticeable because it is posted to an official government website. See

27 Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (judicially noticing

28 information contained on a government website); Paralyzed Veterans of America v. McPherson, No. C

CCSF’s 2nd Supp. RJN ISO Opp. to Motion to

1

Dismiss; CCSF v. President Trump, et al; No. 17-00485

N:\CXLIT\LI2017\171027\01205919.docx

Case 3:17-cv-00485-WHO Document 139 Filed 07/12/17 Page 3 of 7

1 06–4670 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (finding that courts commonly take

2 judicial notice of information and documents on government websites, and citing cases from various

3 jurisdictions).

4

5 Dated: July 12, 2017

6

DENNIS J. HERRERA

City Attorney 7

8

By: /s/ Mollie M. Lee

9

MOLLIE M. LEE Deputy City Attorney

10

Attorneys for Plaintiff

11

CITY AND COUNTY OF SAN FRANCISCO

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CCSF’s 2nd Supp. RJN ISO Opp. to Motion to

2

Dismiss; CCSF v. President Trump, et al; No. 17-00485

N:\CXLIT\LI2017\171027\01205919.docx

Case 3:17-cv-00485-WHO Document 139 Filed 07/12/17 Page 4 of 7
EXHIBIT A

Attorney General Jeff Sessions Delivers Remarks in Las Vegas to Federal, State and Local Law Enforce... Page 1 of 3 Case 3:17-cv-00485-WHO Document 139 Filed 07/12/17 Page 5 of 7
JUSTICE NEWS
Attorney General Jeff Sessions Delivers Remarks in Las Vegas to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to Combat Violent Crime
Las Vegas, NV ~ Wednesday, July 12, 2017
Good morning. It is an honor and a privilege to be here with you all—with the selfless and courageous men and women of law enforcement. Thank you for all you do to keep us safe.
I want to thank acting U.S. Attorney (Steven) Myhre for his hospitality and for his over 25 years of public service as a prosecutor.
Thank you also to Attorney General Laxalt. You all have a real fighter here with him: an Iraq veteran, a champion for his constituents, and now a leader with a national profile. Thank you very much, Adam.
Speaking of fights, as you all know, we have a multi-front battle in front of us right now: an increase in violent crime, vicious gangs, an opioid epidemic, threats from terrorism, and human traffickers.
Since the early 1990s, the crime rate has steadily come down across the country—that is, until two years ago.
Now, violent crime is once again on the rise in many parts of America. The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.
These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers. Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too.
You know the stories all too well. Right now, Las Vegas is mourning the death of 18-year old Eric Brooks, a football star who just graduated from Spring Mountain High School. He had a promising life ahead of him, a life we will never get to see. Witnesses say that he was sitting on a park bench just before he was shot and bled to death in the street.
Too many in our communities have to live in constant fear of violence breaking out in a park, or in their own neighborhoods. Too many are living as hostages in their own homes.
We cannot accept this status quo, and this Department of Justice will not accept it. Every American has the right to be safe in their homes and in their neighborhoods.
The first and most important job of this government—and any government—is to protect the safety and the rights of its people. If we fail at this task, then every other government initiative ceases to be important.
As law enforcement officials, we have the responsibility to stop—and reverse—the surge in violent crime and opioids that has taken place over the last two years. And under President Trump’s leadership, this Department of Justice will answer the call and do its part.
To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.
As we all know, the vast majority of people just want to obey the law and live their lives. A disproportionate amount of crime is committed by a small group of criminals. And the more of them we apprehend, prosecute, and convict, the more crime we can deter.
Budgets are tight, but we’ve worked hard to free money and positions from DC to our US Attorney offices.
We will use those funds to hire 300 more Assistant United States Attorneys and then deploy those resources nationwide to where they are most needed to fight the scourge of crime.
https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-las-vegas-federal-stat... 7/12/2017

Attorney General Jeff Sessions Delivers Remarks in Las Vegas to Federal, State and Local Law Enforce... Page 2 of 3 You all are on theCfraonstelin3e:s17of-cthvis-0fi0gh4t8. 5In-WNeHvaOda, DDoocctourms aernetw1ri3tin9g 9F4ipleredsc0r7ip/t1io2n/s1f7or pPaiankgileler6s opef r7100 residents.
Unbelievable. I understand that your criminal chief and another prosecutor did battle in trial for 10 weeks to convict a dirty doctor and his medical assistant for supplying drug dealers with opioids here in Las Vegas. That is exactly what we need to be doing: holding those responsible for their crimes, even when it is difficult. That is commitment and leading by example.
I also want to applaud these investigators and prosecutors for going after those who prey upon our children. We must make this a top priority. The horrific nature of enticement, kidnapping, and human trafficking cannot be overstated. Those who seek to profit off of the exploitation of our children must be made to feel the weight of swift and certain justice.
Having been a prosecutor for 14 years, I know firsthand that each one of these prosecutions is the result of countless hours of work by our law enforcement partners: witness interviews, reports of investigation, dangerous search warrants, and computer forensics. It is a true team effort. To those law enforcement partners: THANK YOU. You do this work at great personal sacrifice and peril. You don’t get to take a case off or phone it in. A lapse in vigilance can mean grave consequences. Thank You.
Further, under President Trump’s leadership, we are finally getting serious about securing our border. In fact, we are already seeing the positive results of this, with illegal border crossings falling to their lowest monthly figure in at least 17 years. That makes all of us safer.
We are enforcing our immigration laws, including right here in Nevada. In March, ICE arrested 61 foreign nationals in Nevada, 55 of whom had criminal histories. Their crimes include sex offenses, drug offenses, and domestic violence. Removing criminals like these from our streets makes Nevada safer.
With that in mind, I have directed our federal prosecutors to make criminal immigration enforcement a priority, and to appoint a Border Security Coordinator in each of their offices. Through these initiatives, we are going to remove dangerous criminals from our neighborhoods and dismantle the transnational cartels, drug traffickers and gangs that inflict violence and peddle poison in our communities.
This Department is especially focused on combatting the threat posed by transnational criminal organizations like MS-13, whose tentacles stretch from the Salvadoran prison system across the United States. They have a motto: “kill, rape, control.” And that is what they do every day.
Violent gangs have murdered children and pregnant women; they have executed and permanently disfigured innocent bystanders to their crimes, and they have attacked innocent people with chains, bats, and machetes.
They also destroy the lives of the middle schoolers they recruit for membership, the young girls they entrap, gang rape, and ultimately traffick for illicit sex, and the drugs they smuggle across our borders and sell on our streets.
We will combat this threat, take the fight to them, and dismantle these criminal enterprises. It will not be easy, but I have complete faith in our prosecutors and our law enforcement at every level.
Whether it is MS-13, the Bloods, or Outlaw Motorcycle Clubs, gangs have their sights set on our youth and law-abiding citizens, but we have trained our sights on them.
To take these gangs off of our streets, we need cooperation between law enforcement at the federal, state, and local levels. I understand that we have a good measure of that cooperation right here in Las Vegas and that the Sheriff has enrolled his force in ICE’s 287 G program which allows his local deputies to enforce immigration law. This is just the type of force multiplier that we need.
Unfortunately, this cooperation has been impeded by the policies of some cities and states. Some 300 jurisdictions in this country refuse to cooperate with federal immigration authorities regarding illegal aliens who commit crimes — even MS-13 gang members. These jurisdictions are protecting criminals rather than their law-abiding residents.
Now I want to be clear about this: local police are not the problem. I know that you want to help. The problem is that politicians have forbidden you to help. That makes all of us—and especially police officers on the front lines—less safe.
When cities like Philadelphia, Boston, or San Francisco advertise that they have these policies, the criminals take notice.
https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-las-vegas-federal-stat... 7/12/2017

Attorney General Jeff Sessions Delivers Remarks in Las Vegas to Federal, State and Local Law Enforce... Page 3 of 3 According to a recCeantssetu3dy:1f7ro-mcvth-0e0U4n8iv5e-rWsityHoOf CaDlifoorcnuiamReivnetrs1id3e9, citFieislewdith07th/e1s2e/p1o7liciePsahgaeve7moofre7violent crime on
average than those that don’t. We all know the story of Kate Steinle, who was murdered in cold blood two years ago this month. She was walking a pier in San Francisco with her father when an illegal alien—who had been deported five times and committed seven felonies—shot her in the back.
Her death was preventable—and it should have been prevented. She would still be alive today if her killer had been imprisoned or deported, as he should have been.
He walked the streets freely because San Francisco refuses to cooperate with ICE. In fact, he admitted that one reason he was in San Francisco that day was that he knew the city had these policies in place.
Now most cities and states do not have these policies—because the vast majority of the American people agree that these policies are wrong. According to one poll, 80 percent of the public believes that cities should turn over criminal illegal aliens to immigration officials.
Fortunately, Congress is listening to the American people and taking action. Almost two weeks ago, the House passed bipartisan legislation would increase penalties on illegal aliens who break our laws and the jurisdictions that attempt to shield them from justice. I hope that my former colleagues in the Senate will take up this legislation soon.
The American people want and deserve a lawful immigration system that keeps us safe and serves our national interest. And this is not asking too much. This expectation is fair; it is reasonable, and it is our duty to meet it.
The Department of Justice will not concede a single block or street corner in the United States to lawlessness or crime. We will work to strengthen our partnerships with you—law enforcement on the front lines. You are ultimately the most effective resources that we as a country have in this effort.
Many of you are working in the same neighborhoods where you grew up. You know what’s at stake. You know that the safety and peace of mind of us all depends on you.
But you can also know this: we have your back and you have our deepest thanks.
Thank you.

Topic(s): Violent Crime

Component(s): Office of the Attorney General

Updated July 12, 2017

https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-las-vegas-federal-stat... 7/12/2017

 
 Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 1 of 20

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

12 CITY AND COUNTY OF SAN
13 FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, et al.,

17

Defendants.

ORDER DENYING THE GOVERNMENT’S MOTIONS FOR RECONSIDERATION AND TO DISMISS WITH REGARDS TO THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY OF SANTA CLARA
Case No. 17-cv-00574-WHO Dkt. Nos. 113, 115
Case No. 17-cv-00485-WHO Dkt. Nos. 107, 111

18 INTRODUCTION
19 The government has moved for reconsideration of my April 25, 2017 order enjoining
20 section 9(a) of Executive Order 13768 (“PI Order”).1 It has also moved to dismiss the City and
21 County of San Francisco’s and the County of Santa Clara’s claims under Rule 12(b)(6) and Rule
22 12(b)(1). The government’s motions rely heavily on Attorney General Sessions’s two page
23

24

25

1 In the alternative, the government seeks to clarify the scope of the PI Order. However, in its reply, the government states, “If the Court believes defendants correctly read the Order of April

26

25, 2017, as not enjoining them from exercising legal authority, independent of the Executive Order, to impose conditions on grant programming, then formal clarification may be

27

unnecessary.” Gov. Recon. Reply at 1 n.2 (SF Dkt. No. 113). The government correctly reads the PI Order as enjoining only section 9(a) of the Executive Order. The PI Order does not address or

28

enjoin any other independent authority that may allow the government to impose grant conditions on funds, as no such issue was before the court.

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 2 of 20

United States District Court Northern District of California

1 memorandum (the “AG Memorandum”) directed to the grant making components of the

2 Department of Justice (“DOJ”), which the government argues outlines DOJ’s definitive

3 interpretation of the Executive Order. Because I conclude that the AG Memorandum does not

4 change the analysis from the PI Order, the government’s motions for reconsideration are

5 DENIED.

6

Similarly, with regards to the motions to dismiss, the AG Memorandum does not impact

7 my prior conclusions that the Counties have standing, that their claims against the Executive Order

8 are ripe, and that they are likely to succeed on the merits of those claims. I have not previously

9 addressed San Francisco’s declaratory relief claim. I do so now and conclude that San Francisco

10 has adequately stated a claim for declaratory relief. The government’s motions to dismiss San 11 Francisco’s and Santa Clara’s claims are DENIED.2

12

BACKGROUND

13

On April 25, 2017, I granted San Francisco’s and Santa Clara’s motions for a preliminary

14 injunction enjoining enforcement of Executive Order 13768 section 9(a). Preliminary Injunction

15 Order (“PI Order”) (SF Dkt. No. 82); (SC Dkt. No. 98). In granting the Counties’ motions, I

16 rejected the interpretation of the Executive Order that the government put forward at oral

17 argument, that the Executive Order is a mere directive to the Department of Homeland Security

18 (“DHS”) and DOJ that does not seek to place any new conditions on federal funds. Even though

19 government counsel convincingly assured me that this was the accepted interpretation of the Order

20 throughout the ranks of DOJ, I concluded that the interpretation was not legally plausible in light

21 of the Order’s plain language and the government’s many statements indicating the Order’s

22 expansive scope. PI Order at 14.

23

On May 22, 2017, Attorney General Sessions issued the AG Memorandum, putting

24 forward DOJ’s “conclusive” interpretation of the Executive Order; it essentially repeats the

25 interpretation that the government proposed at oral argument. See Reconsideration Motion,

26

27

2 The motions for leave to file amicus briefs at SF Dkt. Nos. 114, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132; and SC Dkt. Nos. 118, 122, 123, 124, 125, 126, 127, 128,

28

129, 130, 131, 132, 133, 134, 135 are GRANTED. Santa Clara’s motion to file a sur-reply at SC Dkt. No. 138 is GRANTED.

2

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 3 of 20

United States District Court Northern District of California

1 Attachment A (“AG Memorandum”) (SF Dkt. No. 107). The AG Memorandum states that the

2 Executive Order does not “purport to expand the existing statutory or constitutional authority of

3 the Attorney General and the Secretary of Homeland Security in any respect” and instead instructs

4 those officials to take action “to the extent consistent with the law.” AG Memorandum at 2. It

5 also states that the defunding provision in section 9(a) will be applied “solely to federal grants

6 administered by [DOJ] or [DHS]” and to grants that require the applicant to “certify . . .

7 compliance with federal law, including 8 U.S.C. section 1373, as a condition for receiving an

8 award.” AG Memorandum at 1-2. The AG Memorandum also states that DHS and DOJ may only

9 impose these conditions pursuant to “existing statutory or constitutional authority,” and only

10 where “grantees will receive notice of their obligation to comply with section 1373.” AG

11 Memorandum at 2.

12

The same day that the AG Memorandum was released, the government moved for leave to

13 file a motion for reconsideration of the PI Order on the grounds that the AG Memorandum

14 contradicts conclusions central to my justiciability and merits determinations. Reconsideration

15 Motion (“Recon. Mot.”) at 4 (SF Dkt. No. 107); (SC Dkt. No. 113). The Counties opposed the

16 motion for leave, arguing that the government had not been diligent in bringing the motion and

17 had failed to demonstrate that the AG Memorandum was a material change of fact or law, as

18 required by Civil Local Rule 7-9. See e.g. SF Opposition to Motion for Leave at 1-4 (SF Dkt. No.

19 103). I granted the government’s motion for leave without addressing these arguments to avoid

20 creating a procedural ambiguity regarding the government’s time to appeal the PI Order, and the

21 government promptly filed its motions for reconsideration. See Leave Order at 1-2 (SF Dkt. No. 22 106).3

23

While its reconsideration motions were pending, the government moved to dismiss all the

24

25

3 In my Order granting leave, I stated that I would address Local Rule 7-9’s requirements in ruling on the merits of the reconsideration motion. Leave Order at 1-2. Because I conclude that the

26

government is not entitled to reconsideration on the merits, I do not address Local Rule 7-9’s diligence requirement. Although I do not directly address Local Rule 7-9(b)’s requirement that

27

the moving party show a material change in fact or law, or a manifest error by the court, I address substantially similar issues in analyzing the merits of the reconsideration motions under Ninth

28 Circuit law.

3

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 4 of 20

United States District Court Northern District of California

1 claims brought by San Francisco and Santa Clara.4 In its motions to dismiss, the government

2 asserts that the Counties lack standing to challenge the Executive Order, especially in light of the

3 guidance issued in the AG Memorandum, because the Executive Order is an internal directive that

4 does not purport to change the law. It further asserts that the plaintiffs have failed to state any

5 claim against the Executive Order. The government also moves to dismiss San Francisco’s claim

6 for a declaration that it complies with section 1373 on the grounds that San Francisco has not

7 identified an independent cause of action to seek declaratory relief and its claim is non-justiciable.

8

LEGAL STANDARD

9 RECONSIDERATION

10

Under the Northern District’s local rules, before filing a motion for reconsideration a party

11 must obtain leave of court. Civil L.R. 7-9(a). To obtain leave, the party must “specifically show

12 reasonable diligence in bringing the motion” and one of the following:

13

(1) That at the time of the motion for leave, a material difference in

fact or law exists from that which was presented to the Court before

14

entry of the interlocutory order for which reconsideration is sought.

The party also must show that in the exercise of reasonable diligence

15

the party applying for reconsideration did not know such fact or law

at the time of the interlocutory order; or 16

(2) The emergence of new material facts or a change of law

17

occurring after the time of such order; or

18

(3) A manifest failure by the Court to consider material facts or

dispositive legal arguments which were presented to the Court

19

before such interlocutory order.

20 Civil L. R. 7-9(b)(1)-(3).

21

Once a reconsideration motion is filed, reconsideration is appropriate “if the district court

22 (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision

23 was manifestly unjust, or (3) there is an intervening change in controlling law.” Sch. Dist. No. 1J,

24 Multnomah Cnty., Or. v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

25

26

27 4 The government has also moved to dismiss the claims brought by the City of Richmond in the

28

related action City of Richmond v. Trump, No. 17-cv-1535. I will address that motion in a separate order.

4

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 5 of 20

United States District Court Northern District of California

1 MOTION TO DISMISS

2

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

3 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

4 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

5 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when

6 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant

7 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

8 omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id.

9 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts

10 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

11

In deciding whether a plaintiff has stated a claim upon which relief can be granted, the

12 court accepts plaintiff’s allegations as true and draws all reasonable inferences in favor of the

13 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is

14 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of

15 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

16 2008).

17

A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject

18 matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited

19 jurisdiction,” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v.

20 Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party invoking the jurisdiction of the

21 federal court bears the burden of establishing that the court has the requisite subject matter

22 jurisdiction to grant the relief requested. Id.

23

A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d

24 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the

25 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

26 The challenger asserts that the allegations in the complaint are insufficient “on their face” to

27 invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

28 2004). To resolve this challenge, the court assumes that the allegations in the complaint are true 5

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 6 of 20

United States District Court Northern District of California

1 and draws all reasonable inferences in favor of the party opposing dismissal. See Wolfe, 392 F.3d

2 at 362.

3

“By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by

4 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. To resolve

5 this challenge, the court “need not presume the truthfulness of the plaintiff’s allegations.” Id.

6 (citation omitted). Instead, the court “may review evidence beyond the complaint without

7 converting the motion to dismiss into a motion for summary judgment.” Id. (citations omitted).

8 Once the moving party has made a factual challenge by offering affidavits or other evidence to

9 dispute the allegations in the complaint, the party opposing the motion must “present affidavits or

10 any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses

11 subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also

12 Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

13

DISCUSSION

14 I. 15

RECONSIDERATION The government has moved for reconsideration of my preliminary injunction order.

16 Under Ninth Circuit precedent, reconsideration is only appropriate “if the district court (1) is

17 presented with newly discovered evidence, (2) committed clear error or the initial decision was

18 manifestly unjust, or (3) there is an intervening change in controlling law.” See Sch. Dist. No. 1J,

19 Multnomah Cnty., Or., 5 F.3d at 1263. The government does not contend that I committed clear

20 error in my initial decision or manifestly failed to consider material facts or dispositive legal

21 arguments. Instead, it argues that the AG Memorandum represents a change in law and is a new

22 material fact that justifies reconsideration.

23

A. Whether the AG Memorandum Reflects a Change in Controlling Law

24

The government does not contend that the AG Memorandum is controlling authority that

25 binds this court. See Gov. Recon. Reply at 5 n.6. It does suggest that the AG Memorandum

26 undermines my prior conclusions regarding the meaning and scope of the Executive Order and

27 should be credited because it is the “conclusive” interpretation of the Attorney General. Id. at 7-

28 11. 6

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 7 of 20

United States District Court Northern District of California

1

This argument is not persuasive. If, as the government admits, the AG Memorandum is

2 not new controlling authority, it is persuasive only to the extent that it is an accurate and credible

3 reading of the Executive Order. See Comite de Jornaleros de Redondo Beach v. City of Redondo

4 Beach, 657 F.3d 936, 946 (9th Cir. 2011)(while a court must “consider the City’s authoritative

5 constructions of the Ordinance, including its implementation and interpretation of it,” it need not

6 “adopt an interpretation precluded by the plain language of the ordinance.”). It is unnecessary to

7 address the merits of the interpretation outlined in the AG Memorandum because it is the same

8 interpretation the government proposed at oral argument; I have already assessed and rejected it as

9 not legally plausible. See SC Recon. Oppo. at 6-8.

10

A motion for reconsideration should not “be used to ask the Court to rethink what it has

11 already thought,” Garcia v. City of Napa, No. C-13-03886-EDL, 2014 WL 342085, at *1 (N.D.

12 Cal. Jan. 28, 2014), and is not a “substitute for appeal or a means of attacking some perceived

13 error of the court.” Washington v. Sandoval, C-10-0250-LHK, 2011 WL 2039687, at *1 (N.D.

14 Cal. May 24, 2011). Because the AG Memorandum is not new controlling authority and only

15 repeats an interpretation of the Executive Order that I have already rejected, it does not justify

16 reconsideration as a “change in controlling authority.”

17

B. Whether the AG Memorandum Reflects a Material Change in Fact or

Evidence 18

The government submits that the AG Memorandum reflects a material change in fact or

19

evidence because it is formal guidance from the Attorney General regarding the scope and

20

meaning of the Executive Order that binds DOJ and other federal agencies. Id. It argues that “the

21

significance of the AG Memorandum lies not only in what it says, but also in the fact that the

22

Attorney General himself has now provided guidance, and in a formal way that is binding on those

23

who will implement the grant eligibility provision – thus directly affecting the likelihood that the

24

Order could be implemented in any way that violates the Constitution or injures the plaintiffs.”

25

Gov. Recon. Reply at 3.

26

1. Illusory Promises to Enforce a Law Narrowly Do Not Resolve

27

Challenges to the Law Itself

28

In opposition, the Counties contend that the AG Memorandum is nothing new and merely

7

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 8 of 20

United States District Court Northern District of California

1 states the same reading of the Executive Order that the government presented at the hearing and

2 which I have already rejected. They assert that to the extent the AG Memorandum reflects a

3 commitment to implement the Executive Order more narrowly than it is written, similar promises

4 are routinely rejected by courts as illusory and should not impact the analysis here. See e.g., City

5 of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988).

6

For example, in City of Lakewood, the Supreme Court considered whether a local

7 ordinance that gave the mayor near unbridled discretion to reject permits was constitutional. Id.

8 The City had urged the Court to presume that “the mayor will act in good faith and adhere to

9 standards absent from the ordinance’s face.” Id. The Court declined to do so, holding that

10 limitations on the discretion of a government actor must be “made explicit by textual

11 incorporation, binding judicial or administrative construction, or well-established practice.” Id.

12

Similarly in Doe v. Harris, the Ninth Circuit upheld a preliminary injunction order

13 enjoining enforcement of a California statute that required sex offenders to disclose their online

14 usernames and passwords to the state and which the state could then disclose to the public “when

15 necessary to ensure the public safety.” Doe v. Harris, 772 F.3d 563, 579-80 (9th Cir. 2014). The

16 Ninth Circuit rejected the state’s argument that “existing constraints on law enforcement

17 activities” would prevent the statute from being implemented in an unconstitutional way, holding

18 that a “promise from the State that it will use the power appropriately is not sufficient.” Id. at 580-

19 581; see also United States v. Stevens, 559 U.S. 460, 480 (2010) (the Executive Branch’s

20 reassurance that it construed a statute as applying only to “extreme” animal cruelty and that it

21 “neither has brought nor will bring a prosecution for anything less” did not resolve a constitutional

22 challenge based on the text of the statute); United States v. Nosal, 676 F.3d 854, 862 (9th Cir.

23 2012) (“The government assures us that, whatever the scope of the CFAA, it won’t prosecute

24 minor violations. But we shouldn’t have to live at the mercy of our local prosecutor.”).

25

Even a formalized promise from those charged with enforcing an offending statute may be

26 insufficient. See City of Redondo Beach, 657 F.3d at 946. In City of Redondo Beach, the City had

27 submitted an affidavit from its City Attorney, attesting that a local Ordinance had only been

28 enforced narrowly “and that [the City Attorney] ha[d] no intention of altering this practice.” Id. 8

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1 But this affidavit did not resolve the Ninth Circuit’s concern that the ordinance’s plain language

2 raised constitutional issues. Id. Although the court acknowledged that it must “consider the

3 City’s authoritative constructions of the Ordinance, including its implementation and

4 interpretation of it,” it held that it need not “adopt an interpretation precluded by the plain

5 language of the ordinance.” Id.

6

The government argues that the AG Memorandum is different than the illusory promises in

7 the cases listed above. Gov. Recon. Reply at 4 n.4. It specifically distinguishes Doe v. Harris,

8 noting that while in that case the state relied on “general principles of good police practices,” in

9 this case “the very official charged with implementing the grant eligibility provision – and with

10 providing legal advice to other agencies – has stated how the provision will be implemented.” Id.

11 The AG Memorandum is certainly more forceful than the representations of counsel in many of

12 the cases above, but is it the kind of binding authority that would genuinely dispel the Counties’

13 fear of unlawful enforcement?

14

C. Is the AG Memorandum an Illusory Promise? Or is it Truly Binding?

15

The government asserts that the AG Memorandum is not illusory because, by longstanding

16 tradition and practice, the Attorney General’s legal opinions are treated as authoritative by the

17 heads of executive agencies. The Counties raise two initial responses to this argument: the AG

18 Memorandum is not a legal opinion; and even if it is, it is not clear that the Attorney General’s

19 legal opinions do in fact bind other agencies. In addition, they argue that this Memorandum does

20 not bind DHS, cannot bind the Attorney General, and is therefore nothing more than an illusory

21 promise to enforce the Executive Order narrowly.

22

1. Is the AG Memorandum a binding legal opinion?

23

a. The AG Memorandum is not a legal opinion

24

The Counties first assert that the AG Memorandum is not a legal opinion. In support of

25 this argument they point out that the Memorandum’s title is “Implementation of Executive Order

26 13768.” SF Recon. Oppo. at 10. The Counties assert that this title indicates that the

27 Memorandum is an “implementation” document regarding how the Executive Order will be

28 enforced, not a legal opinion regarding its meaning and scope. They note that the Memorandum is 9

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 10 of 20

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1 directed only to “All Department Grant-Making Components” within DOJ, and not to any other

2 executive agency. Id. at 11. They contend that this also indicates that the AG Memorandum is

3 only meant to lay out a plan to enforce the Executive Order within DOJ, and is not intended to

4 offer legal guidance to other executive agencies.

5

With regards to the substance of the AG Memorandum, the Counties point out that the

6 document is only two pages long and “does nothing more than summarize the relevant terms of

7 the Executive Order and set forth the Attorney General’s determination of how he intends to carry

8 out the responsibilities it assigns to him. It offers no legal analysis or opinion regarding, for

9 example, the constitutional limits of the Executive Order’s broad language or the legal reasons

10 requiring or dictating his espoused narrowed interpretation.” Id.

11

The government dismisses these critiques. It asserts that the AG Memorandum is a legal

12 opinion because it “obviously deals with underlying ‘questions of law,’ such as the application of

13 8 U.S.C. 1373.” Gov. Recon. Reply at 5. That the AG Memorandum “deals with underlying

14 questions of law” is not persuasive evidence that it is in fact a legal opinion; any memorandum

15 discussing the implementation of a particular law is likely to touch on some underlying questions 16 of the law. While parts of the AG Memorandum seem to reach legal determinations, 5 many

17 indicate only a plan of enforcement. For example, with regard to the funds at issue under the

18 Executive Order, the AG Memorandum states: “I have determined that section 9(a) of the

19 Executive Order, which is directed to the Attorney General and the Secretary of Homeland

20 Security, will be applied solely to federal grants administered by the Department of Justice or the

21 Department of Homeland Security, and not to other sources of federal funding.” AG

22 Memorandum at 1 (emphasis added). This statement indicates a plan to apply section 9(a) only to

23 DOJ and DHS grants, not a legal determination that the Order is actually limited solely to those

24 grants as a matter of law. Similarly, the AG Memorandum states that “I have determined that, for

25 purposes of enforcing the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to

26

27 5 See e.g., AG Memorandum at 1 (“Section 9(a) expressly requires enforcement ‘to the extent

28

consistent with law,’ and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.”).

10

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1 jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.” AG Memorandum at 2

2 (emphasis added). This statement reflects a plan of enforcement, not a legal determination that the

3 Order could not bear a broader reading of “sanctuary jurisdictions” if desired.

4

The AG Memorandum is directed only to grant-making components within DOJ, is labeled

5 as an “implementation” memorandum, is only two pages long, does not engage in substantive

6 legal analysis, and primarily outlines plans to enforce the order, rather than an opinion on its

7 meaning or scope. It does not appear to be a legal opinion that might be binding authority on

8 other federal agencies or DHS.

9

2. Even if it is a legal opinion, the AG Memorandum does not clearly bind

other executive agencies 10

The government asserts that Attorney General legal opinions are binding on executive

11

agencies both by tradition and as a result of the Attorney General’s statutory duties. Case law

12

does not conclusively support the government’s position that all Attorney General Memoranda are

13

binding on the executive branches.

14

In support of its argument, the government cites Tenaska Washington Partners II, L.P. v.

15

United States, 34 Fed. Cl. 434, 439 (1995) in which the Court of Federal Claims stated that

16

“Memoranda issued by the [Office of Legal Counsel], including this one, are binding on the

17

Department of Justice and other Executive Branch agencies and represent the official position of

18

those arms of government.” It also cites ACLU v. Dep’t of Def., 396 F. Supp. 2d 459, 462

19

(S.D.N.Y. 2005) in which the Southern District of New York stated that “The Office of the

20

Attorney General of the DOJ is empowered to furnish advice and opinions on legal matters to

21

government agencies, 28 C.F.R. § 0.5 (2005), and has issued public memoranda interpreting the

22

Convention Against Torture.”

23

While these cases offer some support for the government’s position, they are also clearly

24

distinguishable from the facts here. Both dealt with formal and reasoned legal opinions prepared

25

by the Office of Legal Counsel. In addition, while ACLU acknowledges that the Attorney General

26

may furnish advice and opinions to government agencies, it does not address the primary issue

27

here, whether those opinions are then binding on the agencies. See ACLU, 396 F. Supp. 2d 462.

28

11

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1

The government’s reliance on Tenaska and ACLU, two non-binding lower court cases, one

2 of which does not address the issue at hand, demonstrates that whether an Attorney General

3 memorandum is binding is not a settled issue of law. This conclusion is further supported by one

4 of the secondary sources the government cites, which itself notes that “the question of whether

5 (and in what sense) the opinions of the Attorney General, and, more recently, the Office of Legal

6 Counsel, are legally binding within the executive branch remains somewhat unsettled.” See

7 Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal

8 Counsel, 52 Admin. L. Rev. 1303, 1318 (2000).

9

Nor do the statutes the government cites offer persuasive support for its position. It asserts

10 that the Attorney General’s memoranda are binding on other agencies because the Attorney

11 General has a statutory duty to advise executive department heads on “questions of law,” 28

12 U.S.C. § 512, and to furnish formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c).

13 While section 512 allows a department head to request and receive an Attorney General opinion

14 on “questions of law arising in the administration of his department,” 28 U.S.C. § 512, it does not

15 address whether such an opinion would bind the relevant department; moreover, it is inapplicable

16 to the facts here since there has been no such request. And while section 0.5(c) requires the

17 Attorney General to provide “formal and informal” advice and opinions “on legal matters,” 28

18 C.F.R. § 0.5(c), it is silent on whether any such advice would bind other agencies.

19

The AG Memorandum does not appear to be a legal opinion, and the law is unsettled on

20 whether such opinions are binding on other agencies. The government has not persuasively

21 demonstrated that the AG Memorandum is “binding” on other agencies as a legal opinion.

22

3. Does the AG Memorandum Bind DHS as an Opinion re Immigration

Enforcement? 23

The government asserts that the AG Memorandum binds DHS because, although the

24

Secretary of the Department of Homeland Security administers the immigration laws, the

25

Immigration and Nationality Act states that a “determination and ruling by the Attorney General

26

with respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(c)(1). But the AG

27

Memorandum is not clearly a determination or ruling on a question of immigration law. The AG

28

12

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 13 of 20

United States District Court Northern District of California

1 Memorandum is an internal DOJ implementation order, is not directed to DHS, and does not

2 appear to be a legal opinion. This two-page order outlining how the Executive Order will be

3 implemented within DOJ is not fairly read as a determination and ruling of law that might be

4 controlling on the Secretary of the Department of Homeland Security.

5

4. Does the AG Memorandum Bind DOJ and the Attorney General?

6

The final and most glaring problem with the AG Memorandum is that it is not binding on

7 the Attorney General. As the Counties point out, the Attorney General could, at any time, revoke

8 the AG Memorandum and issue new guidance. Or the President could replace the Attorney

9 General to revoke it.

10

The government does not dispute that the AG Memorandum is revocable, but notes that

11 “that is true of any authoritative guidance issued by a federal official.” Gov. Recon. Reply at 6.

12 That the AG Memorandum shares this trait with other federal guidance does nothing to resolve the

13 issue here. The problem with the AG Memorandum, like the promises from Harris, Stevens, and

14 City of Redondo Beach, is that it is a self-imposed restriction. Where the problem with a law is

15 that it grants excessive discretion or power to a particular official, the problem cannot be resolved

16 by having that same official impose a revocable limitation on himself. Such a restriction does not

17 have the type of exterior oversight that the Supreme Court has held is necessary to cabin unbridled

18 discretion. See City of Lakewood, 486 U.S. at 770 (limitations on the discretion of a government

19 actor must be “made explicit by textual incorporation, binding judicial or administrative

20 construction, or well-established practice.”). Although more formal than a bare promise, because

21 the AG Memorandum will remain in effect only so long as the Attorney General or the President

22 see fit, it is still effectively a “promise from the State that it will use the power appropriately” and

23 “is not sufficient” to cabin the Executive Order. Harris, 772 F.3d at 579-80.

24

I conclude that the AG Memorandum is functionally an “illusory promise” to enforce the

25 Executive Order narrowly and, as such, does not resolve the constitutional claims that the

26

27

28 13

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United States District Court Northern District of California

1 Counties have brought based on the Order’s language.6 As the AG Memorandum reflects the

2 same interpretation of the Executive Order that government counsel proposed at the preliminary

3 injunction hearing, and which I considered and rejected in the PI Order, it is not a material change

4 in fact or evidence that would impact my prior analysis.

5

Because the AG Memorandum reflects neither a change in controlling authority nor a

6 material change in fact or evidence, it does not support reconsideration of the PI Order. The

7 government’s motions for reconsideration are DENIED.

8 II. MOTIONS TO DISMISS

9

The government moves to dismiss the Counties’ claims. It leans heavily on the AG

10 Memorandum, which it asserts demonstrates that the Counties lack standing, that their claims are

11 not ripe, and that their claims challenging the Executive Order are meritless. SF MTD (SF Dkt.

12 No. 111); SC MTD (SC Dkt. No. 115). As discussed with regard to the motions for

13 reconsideration, the AG Memorandum does not resolve the Executive Order’s constitutional

14 issues or alter the analysis from the PI Order. Accordingly, I do not credit the AG Memorandum’s

15 findings in assessing the government’s motions to dismiss. This substantially simplifies resolution

16 of the government’s motions as I addressed most of the arguments it raises now, in detail, in the PI

17 Order. Instead of repeating my prior analysis here, I will simply refer to the relevant portions of

18 my prior order where appropriate. I have not previously discussed San Francisco’s declaratory

19 relief claim and so address the government’s motion to dismiss that claim below.

20

A. Plaintiffs Have Standing and Their Claims are Ripe

21

The government argues that the plaintiffs lack standing and that their claims are unripe. In

22 the PI Order I dedicated twenty-five pages to these issues with regards to San Francisco and Santa

23 Clara and concluded that the Counties have standing to challenge the Executive Order. See PI

24 Order at 11-35. I also concluded that the Counties’ claims were ripe. San Francisco and Santa

25 Clara have established standing and ripeness.

26

27

6 For the same reasons, the AG Memorandum does not meaningfully dispel the Counties’ fear of irreparable harm resulting from budget uncertainty. With nothing preventing the AG

28

Memorandum from being revoked or overwritten, absent the preliminary injunction, the Counties would still face a genuine threat that the Executive Order could be enforced broadly.

14

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United States District Court Northern District of California

B. The Executive Order is not an Internal Directive 1
The government contends that the plaintiffs’ claims must be dismissed because the 2
Executive Order is an internal directive and does not change the law. In the PI Order, I concluded 3
that the Executive Order is not an internal directive and does change the law. See PI Order at 124
16. 5

C. The Plaintiffs Have Stated Valid Claims Challenging Section 9(a) of the

6

Executive Order

7

The government asserts that Santa Clara and San Francisco have failed to state any claim

8 challenging section 9(a) of the Executive Order. In the PI Order, I found that the Counties were

9 likely to succeed on all of their claims against the Executive Order. See PI Order at 35-44. In

10 concluding that the Counties were likely to succeed on these claims, I necessarily concluded that

11 the Counties had adequately stated these claims, a considerably lower burden. Accordingly, as

12 specified below, I conclude that the Counties have adequately stated all their claims challenging

13 section 9(a) of the Executive Order.

14

1. The Counties’ Separation of Powers Claims

15

The government asserts that Santa Clara and San Francisco have failed to state a separation

16 of powers claim. As detailed in the PI Order, the Counties have adequately stated a separation of

17 powers claim. See PI Order at 35-37.

18

2. The Counties Spending Clause Claims

19

The government asserts that Santa Clara and San Francisco have failed to state a spending

20 clause violation claim. As detailed in the PI Order, the Counties have adequately stated a

21 spending clause violation claim. See PI Order at 37-41.

22

3. San Francisco’s Tenth Amendment Claim

23

The government asserts that San Francisco has failed to state a Tenth Amendment

24 violation. As detailed in the PI Order, San Francisco has adequately stated a Tenth Amendment

25 violation. See PI Order at 39-41.

26

4. Santa Clara’s Fifth Amendment Vagueness Claim

27

The government asserts that Santa Clara has failed to state a Fifth Amendment vagueness

28 claim. As detailed in the PI Order, Santa Clara has adequately stated a Fifth Amendment 15

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 16 of 20

United States District Court Northern District of California

1 vagueness claim. See PI Order at 41-43.

2

5. Santa Clara’s Fifth Amendment Procedural Due Process Claim

3

The government asserts that Santa Clara has failed to state a Fifth Amendment procedural

4 due process claim. As detailed in the PI Order, Santa Clara has adequately stated a Fifth

5 Amendment procedural due process claim. See PI Order at 43-44.

6

D. San Francisco’s Declaratory Relief Claim

7

San Francisco has brought a claim for declaratory relief seeking a declaration that its laws

8 comply with section 1373. The government moves to dismiss this claim. It asserts that San

9 Francisco has failed to identify a right of action in section 1373 or elsewhere that would allow it to

10 pursue declaratory relief and that “the declaration that plaintiff seeks would constitute a prohibited

11 advisory opinion.” SF MTD at 11.

12

1. San Francisco Must Demonstrate an “Actual Controversy” to Seek

Declaratory Relief Under the Declaratory Judgment Act 13

Despite the government’s assertions, San Francisco does not need to demonstrate an

14

independent cause of action to seek a declaration that it complies with section 1373. Instead, it

15

must demonstrate that there is an actual legal controversy regarding its compliance with section

16

1373 in order to pursue declaratory relief under the Declaratory Judgment Act.

17

The government correctly notes that the Declaratory Judgment Act creates a remedy for

18

litigants but is not an independent cause of action. See, e.g., Muhammad v. Berreth, No. C 12-

19

02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory relief is not an

20

independent cause of action or theory of recovery, only a remedy. The [Declaratory Judgment

21

Act] does not itself confer federal subject-matter jurisdiction.”) (citation and internal quotation

22

marks omitted). However, it draws the wrong conclusion from this well-established holding,

23

asserting that a plaintiff must have some other independent statutory right to bring a plausible

24

claim for declaratory relief. SF MTD at 11. If that were the case, the Declaratory Judgment Act

25

would be meaningless; any plaintiff able to seek declaratory relief would already have an

26

independent right to do so. What this rule clarifies is that the Declaratory Judgment Act “does not

27

itself confer federal subject-matter jurisdiction” and that a plaintiff seeking declaratory relief must

28

16

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 17 of 20

United States District Court Northern District of California

1 independently establish that it has standing to seek relief. Fid. & Cas. Co. v. Reserve Ins. Co., 596

2 F.2d 914, 916 (9th Cir. 1979).

3

To establish Article III standing and seek relief under the Declaratory Judgment Act, a

4 plaintiff must demonstrate that its claim involves an “actual controversy.” See Aetna Life Ins. Co.

5 v. Haworth, 300 U.S. 227, 240 (1937); 28 U.S.C. § 2201(a) (“In a case of actual controversy

6 within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal

7 relations of any interested party seeking such declaration, whether or not further relief is or could

8 be sought.”). This means that the dispute must be “definite and concrete, touching the legal

9 relations of parties having adverse legal interests” and be “real and substantial.” Aetna, at 240-

10 241. “Basically, the question in each case is whether the facts alleged, under all the

11 circumstances, show that there is a substantial controversy, between parties having adverse legal

12 interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

13 Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

14

2. San Francisco Has Demonstrated an “Actual Controversy” regarding

its Compliance with Section 1373 15

There is a real and immediate controversy between San Francisco and the federal

16

government regarding whether San Francisco complies with section 1373. Although the

17

government has not sued San Francisco for failing to comply with section 1373 and has not

18

declared San Francisco a “sanctuary jurisdiction” under section 9(a) of the Executive Order, in

19

many statements, official writings, and opinion pieces, key government officials have repeatedly

20

indicated that, in the eyes of the federal government, San Francisco’s policies do not comply with

21

federal law.

22

For example, in a March 27, 2017 statement on sanctuary cities, Attorney General Sessions

23

criticized San Francisco for its “sanctuary policies,” noted that this type of “disregard for the law

24

must end” and indicated that DOJ would be taking steps to ensure compliance with section 1373.

25 See SF. RJN Ex. D. (SF Dkt. No. 116-4).7 In a statement to law enforcement representatives in

26

27 7 I take judicial notice of RJN Ex. D; a press release dated March 27, 2017 and titled “Attorney

28

General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions.” Attorney General Sessions’s statements in this document are judicially noticeable at the statements “can be accurately and

17

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 18 of 20

United States District Court Northern District of California

1 Las Vegas on the day of the hearing on these motions, the Attorney General noted that “[s]ome

2 300 jurisdictions in this country refuse to cooperate with federal immigration authorities,” and,

3 that “politicians have forbidden [local law enforcement] to help.” SF. 2nd Supp. RJN Ex. A at 2 4 (SF Dkt. No. 139).8 He specifically called out San Francisco as one of the cities that “have these

5 policies.” Id. Representative John Culberson, who chairs the House of Representatives

6 subcommittee that controls DOJ spending, and who has helped condition certain DOJ grants on

7 compliance with section 1373, has stated that a sanctuary city is any city that “[v]iolates 8 U.S.C. 8 Code 1373,” SF RJN Ex. U at 2 (SF Dkt. No. 116-21),9 and that section 1373 “bars state and local

9 officials from interfering ‘in any way’ with requests for personal immigration information by 10 federal authorities.” SF RJN Ex. E at 3-4 (SF Dkt. No. 116-5).10 Culberson has indicated his clear

11 belief that San Francisco is in violation of section 1373, noting that it was San Francisco’s

12 sanctuary policies and the murder of Kate Steinle that galvanized him to ensure that DOJ grants

13 would be conditioned on compliance with section 1373 in the first place. SF RJN Ex. U at 6.

14 When questioned regarding San Francisco’s lawsuit challenging the Executive Order, Culberson

15 confidently asserted that San Francisco would ultimately lose and would not receive any federal

16 money because it doesn’t “follow federal law.” SF RJN Ex. E at 11. Finally, in a formal

17

18

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2). They are also judicially noticeable because they were posted on an official

19 government website. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010).

20

8 I take judicial notice of 2nd Supp. RJN Ex. A; a press release dated July 12, 2017 and titled “Attorney General Jeff Sessions Delivers Remarks in Las Vegas to Federal, State and Local Law

21

Enforcement About Sanctuary Cities and Efforts to Combat Violent Crime.” Attorney General Sessions’s statements in this document are judicially noticeable at the statements “can be

22

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2). They are also judicially noticeable because they were posted on an

23 official government website. See Daniels-Hall, 629 F.3d at 998-99.

24

9 I take judicial notice of RJN Ex. U, a copy of Jeff Sessions, John Culberson, Dennis Herrera, Jose Antonio Vargas, Op-Ed, 4 Voices: Are Sanctuary Cities Good for the Community, S.F.

25

Chron., Apr.7, 2017, as it contains the statements of government officials which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

26 Fed. R. Evid. § 201(b)(2).

27

10 I take judicial notice of RJN Ex. E, a copy of the article “Did Culberson Misfire when he took a shot a ‘sanctuary city’ funds?”, Houstonchronicle.com, updated March 19, 2017, as it contains the

28

statements of government officials which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2).

18

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 19 of 20

United States District Court Northern District of California

1 Memorandum assessing potential violations of section 1373, Inspector General Michael Horowitz

2 indicated that San Francisco’s policies appear to be “inconsistent” with section 1373’s 3 requirements. SF. RJN Ex. F at 6 n.7 (SF Dkt. No. 116-6).11

4

Given that key government actors charged with enforcing compliance with section 1373

5 have repeatedly called out San Francisco for its sanctuary policies and non-compliance with

6 federal immigration law, it appears there is a “real and substantial” dispute regarding whether San

7 Francisco complies with section 1373. The government could resolve this dispute by bringing a

8 federal preemption suit and challenging the legality of San Francisco’s sanctuary policies (or by

9 disavowing that it has any intent to do so), but it has not done so. Meanwhile, it indicates that it

10 intends to expand the number of federal grants conditioned on compliance with section 1373 and

11 to enforce any conditions already in place.

12

“The Declaratory Judgment Act was designed to relieve potential defendants from the

13 Damoclean threat of impending litigation which a harassing adversary might brandish, while

14 initiating suit at his leisure or never. The Act permits parties so situated to forestall the accrual of

15 potential damages by suing for a declaratory judgment, once the adverse positions have

16 crystallized and the conflict of interests is real and immediate.” Societe de Conditionnement en

17 Aluminium v. Hunter Engineering Co., 655 F.2d 938, 943 (9th Cir. 1981). Because San Francisco

18 has demonstrated an “actual controversy” regarding its compliance with section 1373, it need not

19 sit back and wait, as the potential liability for its potential noncompliance with section 1373

20 increases. The Declaratory Judgment Act permits it to seek declaratory relief to resolve this “real

21 and substantial” legal dispute.

22

San Francisco has stated a justiciable claim for declaratory relief.

23

24

25 11 I take judicial notice of RJN Ex. F, a copy of a Memorandum prepared by Michael E. Horowitz,

26

Inspector General, U.S. Department of Justice, to Karol V. Mason, Assistant Attorney General for the Office of Justice Programs, U.S. Department of Justice, entitled “Department of Justice

27

Referral of Allegations of Potential Violations of U.S.C. § 1373 by Grant Recipients,” dated May 31, 2016, because government memoranda, bulletins, reports, letters, and statements of public

28

record are appropriate for judicial notice. See Brown v. Valoff, 422 F.3d 926, 933 n.9 (9th Cir. 2005).

19

Case 3:17-cv-00485-WHO Document 146 Filed 07/20/17 Page 20 of 20

United States District Court Northern District of California

1

CONCLUSION

2

As outlined above, the government’s motions for reconsideration and to dismiss San

3 Francisco’s and Santa Clara’s claims are DENIED. It shall answer the complaints within twenty

4 days.

5

IT IS SO ORDERED.

6 Dated: July 20, 2017

7

8

9

William H. Orrick United States District Judge

10

11

12

13

14

15

16

17

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28 20

 
 Case 3:17-cv-00485-WHO Document 149 Filed 08/15/17 Page 1 of 4

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 TARA M. STEELEY, State Bar #231775

CHRISTINE VAN AKEN, State Bar #241755

6 MOLLIE M. LEE, State Bar #251404

AILEEN M. McGRATH, State Bar #280846

7 Deputy City Attorneys

City Hall, Room 234

8 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

9 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

10 E-Mail:

brittany.feitelberg@sfgov.org

11 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
12

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 CITY AND COUNTY OF SAN

Case No. 17-485 WHO

FRANCISCO,

17

ADMINISTRATIVE MOTION TO

Plaintiff, 18
vs. 19

CONSIDER WHETHER CASES SHOULD
BE RELATED PURSUANT TO N.D. CAL. CIVIL L.R. 3-12(B)

20

DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA, ELAINE DUKE, Acting Secretary of United

Date Filed: January 31, 2017 Trial Date: April 23, 2018

21 States Department of Homeland Security,

JEFFERSON B. SESSIONS III, Attorney

22 General of the United States, DOES 1-100,

23

Defendants.

24

25

26

27

28

Admin. Motion Re: Cases Related; Case #17-00485

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1 I. INTRODUCTION

2

Plaintiff City and County of San Francisco (“San Francisco”), a party in this action, has filed a

3 separate action challenging two new grant conditions imposed by the United States Department of

4 Justice. City and County of San Francisco v. Sessions, et. al., Case No. 3:17-cv-04642

5 (“San Francisco v. Sessions”), involves the same Plaintiff, one of the same Defendants, and similar

6 issues to those before this Court in City and County of San Francisco v. Trump et al., Case No. 3:177 cv-00485-WHO (“San Francisco v. Trump”).1 Pursuant to Civil Local Rule 3-12(b), San Francisco

8 respectfully requests that the Court consider whether these two matters may be related, and conclude

9 that they are.

10 II. DISCUSSION

11

“An action is related to another when: (1) The actions concern substantially the same parties,

12 property, transaction or event; and (2) it appears likely that there will be an unduly burdensome

13 duplication of labor and expense or conflicting results if the cases are conducted before different

14 Judges.” N.D. Cal. Civ. L.R. 3-12(a). San Francisco v. Trump and San Francisco v. Sessions concern

15 substantially the same parties, and they both challenge actions by President Trump’s Administration to 16 withhold federal funds from sanctuary cities.2

17

San Francisco v. Trump challenges provisions of President Trump’s January 25, 2017

18 executive order directing specified actions against state, local, and municipal governments deemed to

19 be so-called “sanctuary jurisdictions,” Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the

20 “Executive Order”). Among other things, the Executive Order directs the Attorney General and the

21 Secretary of Homeland Security to ensure that sanctuary jurisdictions “are not eligible to receive

22 Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or

23 the Secretary.” San Francisco contends that this violates constitutional separation of powers, the

24
1 The Court has already related San Francisco v. Trump to two other cases challenging 25 Executive Order No. 13,768. See Dkt. No. 19 (relating County of Santa Clara v. v. Trump et al., Case
No. 5:17-cv-00574-WHO), and Dkt. No. 53 (relating City of Richmond v. Trump, et al., Case No. 26 3:17-cv-01535-WHO).

27

2 The complaints in San Francisco v. Trump and San Francisco v. Sessions are attached as

Exhibits 1 and 2, respectively, to the Declaration of Mollie M. Lee filed with this Motion.

28

Admin. Motion Re: Cases Related; Case #17-00485

1

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1 Spending Clause, and the Tenth Amendment. Dkt. No. 105 ¶¶ 144-157. On April 25, 2017, the Court

2 entered a preliminary injunction enjoining Defendants (except the President) from enforcing the

3 challenged provision against sanctuary jurisdictions.3 Dkt. No. 82 at 49. As the Court subsequently

4 noted, “[t]he PI Order does not address or enjoin any other independent authority that may allow the

5 government to impose grant conditions on funds, as no such issue was before the court.” Dkt. No. 146

6 at 1 fn. 1.

7

San Francisco v. Sessions challenges recently announced grant conditions for the Edward

8 Byrne Memorial Justice Assistance Grant Program, which is administered by the United States

9 Department of Justice. These conditions require grant recipients to (1) provide federal immigration

10 officials access to local detention facilities to interrogate any suspected aliens held there, and (2)

11 provide the Department of Homeland Security with 48 hours’ notice before releasing an individual,

12 where the federal government has requested notice in order to take that individual into custody for

13 immigration reasons. San Francisco contends that these conditions violate the Constitution’s

14 separation of powers and Spending Clause, for many of the same reasons that the Executive Order

15 violates these provisions. These provisions seek to usurp Congress’ power to attach conditions on

16 federal grant funding, because Congress has neither included these conditions in any federal statute or

17 authorized the Attorney General to impose them. In addition, the conditions the Trump

18 Administration attempts to impose are ambiguous; are not germane to the stated purposes of the

19 statutory program; and would require funding recipients to engage in unconstitutional activity by

20 detaining individuals without probable cause.

21

San Francisco v. Trump and San Francisco v. Sessions concern substantially the same parties.

22 San Francisco is the plaintiff in both suits, and Attorney General Jefferson B. Sessions is a defendant

23 in both suits. San Francisco v. Trump also names as defendants President Trump, U.S. Department of

24 Homeland Security Secretary John F. Kelly, and the United States. San Francisco v. Sessions also

25 names as defendants Alan R. Hanson, Acting Assistant Attorney General of the United States, and the

26 United States Department of Justice.

27 3 San Francisco also sought a declaration that its laws comply with 8 U.S.C. § 1373, which the
28 Executive Order linked to sanctuary jurisdictions. The Court has not yet ruled on this question.

Admin. Motion Re: Cases Related; Case #17-00485

2

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1

Given the overlap in parties and the similar factual and legal issues involved, conducting the

2 actions in two courts simultaneously may lead to unnecessary duplication of effort and the potential

3 for conflicting results.

4 III. CONCLUSION

5

For the foregoing reasons, San Francisco respectfully requests that the Court find that

6 San Francisco v. Trump and San Francisco v. Sessions are related under Local Rule 3-12.

7

8 Dated: August 15, 2017

9

DENNIS J. HERRERA

City Attorney

10

JESSE C. SMITH

11

RONALD P. FLYNN YVONNE R. MERÉ

12

CHRISTINE VAN AKEN TARA M. STEELEY

13

MOLLIE M. LEE AILEEN M. McGRATH

14

Deputy City Attorneys

15

16

By: /s/ Mollie M. Lee

MOLLIE M. LEE

17

Deputy City Attorney

18

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

19

20

21

22

23

24

25

26

27

28

Admin. Motion Re: Cases Related; Case #17-00485

3

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 Case 3:17-cv-00485-WHO Document 153 Filed 08/17/17 Page 1 of 2

1 DENNIS J. HERRERA, State Bar#139669

City Attorney

2 JESSE C. SMITH, StateBar#122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, StateBar#184186

Chief Deputy City .t}ttorney

4 YVONNE R. MERE, State Bar #173594

Chief of Complex and Affirmative Litigation

5 TARA M. STEELEY, State Bar #231775

CHRISTINE VANAKEN, StateBar#241755

6 MOLLIE M. LEE, State Bar #251404

AILEEN M. McGRATH, State Bar #280846

7 Deputy City Attorneys

City Hall, Room 234

8 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

9 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

10 E-Mail:

brittany.feitelberg@sfgov.org

11 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
12

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 CITY AND COUNTY OF SAN FRANCISCO,

Case No. 3:17-cv-00485 WHO

17

SUPPLEMENTALSTATEMENTINSUPPORT

Plaintiff,

OF ADMINISTRATIVE MOTION TO

18 19

vs. DONALD J. TRUMP, President of the United

CONSIDER WHETHER CASES SHOULD
BE RELATED PURSUANT TO N.D. CAL. CIVIL L.R. 3-12(B)

20 States, UNITED STATES OF AMERICA, ELAINE DUKE, Acting Secretary of United
21 States Department of Homeland Security, JEFFERSON B. SESSIONS ill, Attorney

Date Filed: January 31, 2017 Trial Date: April23, 2018

22 General of the United States, DOES 1-100,

23

Defendants.

24

25

26

27

28

Admin. Motion Re: Cases Related; Case #17-00485

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Case 3:17-cv-00485-WHO Document 153 Filed 08/17/17 Page 2 of 2

1

City and County of San Francisco ("San Francisco") is the sole Plaintiff in City and County of

2 San Francisco v. Trumpet al., Case No. 3:17-cv-00485-WHO ("San Francisco v. Trump") and City

3 and County ofSan Francisco v. Sessions, et. al., Case No. 3: 17-cv-04642-SBA ("San Francisco v.

4 Sessions") (collectively, "the Actions").

5

On August 15, 2017, San Francisco filed an Administrative Motion to consider whether the

6 Actions should be related pursuant to Northern District of California Civil Local Rule 3-12 ("Motion

7 to Relate").

8

On August 16, 2017, Defendants Donald. J. Trump and Jefferson B. Sessions made statements

9 underscoring that the Actions concern "substantially the same ... transaction or event." N.D. Cal.

10 Civil L.R. 3-12(B). Specifically, the White House issued a "Fact Sheet" titled "Donald J. Trump and

l1 Attorney General Sessions Stand Up Against Lawless Sanctuary Cities." See Declaration of Mollie M.

12 Lee in Support of Supplemental Statement In Support Of Motion to Relate at C)[ 3 and Exhibit 1. The

13 Fact Sheet explicitly links the Executive Order that San Francisco challenges in San Francisco v.

14 Trump to the new grant conditions that San Francisco challenges in San Francisco v. Sessions. Also on

15 August 16, 2017, Attorney General Sessions, a defendant in both Actions, made remarks that appear to

16 link the Executive Order to the new conditions. Id. at C)[ 4.

17

The statements were not available when San Francisco filed its initial Motion to Relate, and

18 they constitute additional facts for the Court to consider in deciding that Motion.

19

20 Dated: August 17, 2017

21

DENNIS J. HERRERA

City Attorney 22

23

24

By: Is/ Mollie M. Lee MOLLIE M. LEE

25

Deputy City Attorney

26

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

27

28

Admin. Motion Re: Cases Related; Case #17-00485

1

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 Case 3:17-cv-00485-WHO Document 155 Filed 08/18/17 Page 1 of 3

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
CITY AND COUNTY OF SAN
16 FRANCISCO,

No. 3:17-cv-00485-WHO

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, et al.,

20

Defendants.

DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO N.D. CAL. CIVIL L.R. 3-12(B)

21

22
The City and County of San Francisco asks this Court to consider whether a new case that
23
San Francisco has filed, City and County of San Francisco v. Sessions, et. al., Case No. 3:17-cv-
24
04642-SBA, should be deemed related to this case. The government would have no objection to
25
the standard, random assignment of Case No. 4642 to this judge or any other district judge of this
26
Court pursuant to the Court’s Assignment Plan. See General Order No. 44.
27

28

Response to Motion to Relate Cases No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 155 Filed 08/18/17 Page 2 of 3

1

Plaintiff asks the Court to deviate from the standard assignment plan based on Civil Local

2 Rule 3-12(a), which provides that one civil action is related to another, and thus should be

3 assigned to the same judge, when “(1) The actions concern substantially the same parties,

4 property, transaction or event; and (2) It appears likely that there will be an unduly burdensome

5 duplication of labor and expense or conflicting results if the cases are conducted before different

6 Judges.” Civ. L.R. 3-12(a).

7

Defendants have not objected to prior related-case motions in this action. Nevertheless,

8 the unique aspects of this case and Case No. 4642, reflected in part in the Court’s prior rulings in

9 this action, suggest that the two cases do not satisfy Rule 3-12(a)’s “substantially the same”

10 standard. In its Order of April 25, 2017, preliminarily enjoining Section 9(a) of Executive Order

11 13,768, the Court emphasized the precise confines of this litigation. Specifically, the Court did

12 “not address or enjoin any other independent authority that may allow the government to impose

13 grant conditions on funds, as no such issue was before the court.” Cty. of Santa Clara v. Trump,

14 ___ F. Supp. 3d ___, 2017 WL 3086064, at *1 n.1 (N.D. Cal. July 20, 2017) (emphasis added).

15 In contrast to this challenge to Executive Order No. 13,768, an action by the President, Case No.

16 4642 concerns a program operated through the Attorney General, pursuant to statutory authority

17 (independent of the Executive Order) to impose conditions on the acceptance of a particular

18 federal grant that the Department of Justice administers. See Case No. 4642, Compl. ¶¶ 1, 6; 42

19 U.S.C. §§ 3712(a)(6), 3752(a)(5). In other words, Case No. 4642 centers on an issue not

20 challenged or addressed in this action, namely, the Department’s “exercising [of] legal authority,

21 independent of the Executive Order, to impose conditions on grant programming.” 2017 WL

22 3086064, at *1 n.1 (quoting Dkt. No. 113 at 1 n.2).

23

Accordingly defendants doubt whether Civil Local Rule 3-12(a) is satisfied here.

24 Dated: August 18, 2017
25
26
27
28 Response to Motion to Relate Cases
No. 3:17-cv-00485-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney
2

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Response to Motion to Relate Cases
No. 3:17-cv-00485-WHO

JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; ELAINE C. DUKE, Acting Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States
3

 
 Case 3:17-cv-00485-WHO Document 158 Filed 08/30/17 Page 1 of 32

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755 TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 MATTHEW S. LEE, State Bar #295247

8 NEHA GUPTA, State Bar #308864 Deputy City Attorneys

9 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

10 San Francisco, California 94102-4602 Telephone: (415) 554-4748

11 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff

13 CITY AND COUNTY OF SAN FRANCISCO

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

18 FRANCISCO,

PLAINTIFF CITY AND COUNTY OF SAN

19

Plaintiff,

FRANCISCO’S NOTICE OF MOTION AND

MOTION FOR SUMMARY JUDGMENT, OR

20

vs.

IN THE ALTERNATIVE, PARTIAL

SUMMARY JUDGMENT

21 DONALD J. TRUMP, President of the United

States, UNITED STATES OF AMERICA,

Date: October 4, 2017

22 ELAINE C. DUKE, Acting Secretary of the Time: 2:00 p.m.

United States Department of Homeland

Judge: Honorable William H. Orrick

23 Security, JEFFERSON B. SESSIONS III,

Department: Courtroom 2, 17th Floor

Attorney General of the United States, DOES

24 1-100,

Date Filed: January 31, 2017

Trial Date: April 23, 2018

25

Defendants.

26

27

28

CCSF v. President Trump, et al; Case No. 17-00485

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ......................................................................................................... iii
3 NOTICE OF MOTION AND MOTION .........................................................................................1 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
4 INTRODUCTION ...........................................................................................................................1
5 LEGAL STANDARD......................................................................................................................2

6 BACKGROUND .............................................................................................................................3

7

I. The Executive Order And Section 1373 ..................................................................3

II. San Francisco’s Irreparable Injury...........................................................................5 8

III. Procedural History ...................................................................................................7

9

IV. Continued Threats ....................................................................................................8

10 ARGUMENT ...................................................................................................................................8

11

I. San Francisco Complies With Section 1373............................................................8

12

A. Section 1373 Imposes Narrow Obligations About Citizenship Or

Immigration Status Information...................................................................9

13

B. San Francisco’s Laws Comply with Section 1373. ...................................10

14

II. The Executive Order Is Unconstitutional. .............................................................12

15

A. The Executive Order Violates Separation Of Powers Principles...............12

B. The Executive Order Violates The Spending Clause. ...............................13 16

1. The Funding Restriction Violates The Unambiguousness

17

Requirement. ..................................................................................13

18

2. The Funding Restriction Is Not Reasonably Related To

Congress’s Purpose In Spending The Funds. ................................14

19

3. The Funding Restriction Is Unduly Coercive. ...............................16

20

4. The Funding Restriction Seeks To Compel The States To Engage

21

In Unconstitutional Conduct. .........................................................17

5. Congress Has Not Determined That Defunding Sanctuary

22

Jurisdictions Promotes The General Welfare. ...............................17

23

C. The Executive Order Violates The Tenth Amendment. ............................18

24

D. The AG Memorandum Does Not Narrow the Executive Order. ...............20

1. The AG Memorandum Is Not Binding Authority About The

25

Executive Order. ............................................................................20

26

2. Even If The AG Memorandum Were Binding, It Would Not

Alter The Plain Language Of The Executive Order Or Eliminate

27

Its Coercive Force. .........................................................................22

28

III. San Francisco Is Entitled To Declaratory And Injunctive Relief. .........................23

CCSF v. President Trump, et al; Case No. 17-00485

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A. Defendants Have Created An “Actual Controversy” That Entitles San

1

Francisco To Declaratory Relief On All Counts........................................23

2

B. Defendants’ Ongoing Threats, Together With The Balance Of Equities

And Public Interest, Entitle San Francisco To A Permanent Injunction

3

Of The Executive Order.............................................................................23

4 CONCLUSION..............................................................................................................................25

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

Cases 2 Aetna Life Ins. Co. v. Haworth

3 300 U.S. 227 (1937)...................................................................................................................23

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez 458 U.S. 592 (1982)...................................................................................................................20
5 Celotex Corp. v. Catrett
6 477 U.S. 317 (1986).....................................................................................................................3

7 Chevron, U.S.A., v. Natural Res. Def. Council, Inc. 467 U.S. 837 (1984).....................................................................................................................9
8

9

City of Lakewood v. Plain Dealer Publ’g Co. 486 U.S. 750 (1988)...................................................................................................................22

10 Clinton v. City of New York
11 524 U.S. 417 (1998)...................................................................................................................12

12 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach 657 F.3d 936 (9th Cir. 2011) .....................................................................................................22
13

14

Delbon Radiology v. Turlock Diagnostic Ctr. 839 F. Supp. 1388 (E.D. Cal. 1993) ............................................................................................3

15 Doe v. Harris 16 772 F.3d 563 (9th Cir. 2014) .....................................................................................................22

17 eBay Inc. v. MercExchange, L.L.C. 547 U.S. 388 (2006)...................................................................................................................24
18 Env’tl Def. Ctr., Inc. v. U.S. E.P.A.
19 344 F.3d 832 (9th Cir. 2003) .....................................................................................................18
20 Galarza v. Szalczyk 21 745 F.3d 634 (3d Cir. 2014) ......................................................................................................19

22 Gregory v. Ashcroft 501 U.S. 452 (1991)...................................................................................................................10
23 Knox v. Serv. Emps. Int'l Union
24 567 U.S. 298 (2012)...................................................................................................................22
25 LaCroix v. Junior 26 Case No. F17-376, 2017 WL 837477 (Fla Cir. Ct. Mar. 3, 2017).......................................18, 19
27 Lunn v. Commonwealth 78 N.E.3d 1143 (Mass. 2017) ......................................................................................................4
28

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Maryland Casualty Co. v. Pacific Coal & Oil Co. 1 312 U.S. 270 (1941)...................................................................................................................23
2 Massachusetts v. U.S. 3 435 U.S. 444 (1978)...................................................................................................................14

4 Mayweathers v. Newland 314 F.3d 1062 (9th Cir. 2002) ...................................................................................................15
5 Melendres v. Arpaio
6 695 F.3d 990 (9th Cir. 2012) .....................................................................................................25
7 Miranda–Olivares v. Clackamas Cty. 8 No. 3:12-cv-02317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014)....................................17, 19
9 Monsanto Co. v. Geertson Seed Farms 561 U.S. 139 (2010)...................................................................................................................24
10 Morales v. Chadbourne
11 793 F.3d 208 (1st Cir. 2015)......................................................................................................17
12 New York v. U.S. 13 505 U.S. 144 (1992)...........................................................................................14, 15, 18, 19, 20
14 Pennhurst State Sch. & Hospital v. Halderman 451 U.S. 1 (1981).................................................................................................................10, 14
15 Printz v. United States
16 521 U.S. 898 (1997).......................................................................................................18, 19, 20

17 Reno v. Condon 18 528 U.S. 141 (2000)...................................................................................................................19
19 Robinson v. Shell Oil Co. 519 U.S. 337 (1997).....................................................................................................................9
20 Rosenbaum v. Washoe County
21 663 F.3d 1071 (9th Cir. 2011) ...................................................................................................17

22 Rust v. Sullivan 500 U.S. 173 (1991)...................................................................................................................10
23

24

South Dakota v. Dole 483 U.S. 203 (1987).................................................................................................12, 13, 14, 17

25 State Dep’t of Pub. Health v. Superior Court
26 60 Cal. 4th 940 (2015) ...............................................................................................................11

27 Steinle v. City and Cty. of San Francisco 230 F. Supp. 3d 994 (N.D. Cal. 2017) .........................................................................................9
28

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Sturgeon v. Bratton 1 174 Cal. App. 4th 1407 (2009) ..................................................................................................10
2 Train v. City of New York 3 420 U.S. 35 (1975).....................................................................................................................12
4 Trujillo-Santoyo v. United States No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. Tex. June 5, 2017)....................................17
5 United States v. North Carolina
6 192 F. Supp. 3d 620 (M.D.N.C. 2016) ......................................................................................24
7 United States v. Nosal 8 676 F.3d 854 (9th Cir. 2012) .....................................................................................................22
9 United States v. Stevens 559 U.S. 460 (2010)..................................................................................................................22
10 Western Watersheds Project v. Abbey
11 719 F.3d 1035 (9th Cir. 2013) ...................................................................................................21
12 Whitman v. Am. Trucking Ass’ns 13 531 U.S. 457 (2001).............................................................................................................22, 23
14 Winter v. Natural Res. Def. Council, Inc. 555 U.S. 7 (2008).......................................................................................................................24
15 Yates v. United States
16 135 S. Ct. 1074 (2015)...............................................................................................................11
17 Youngstown Sheet & Tube Co. v. Sawyer 18 343 U.S. 579 (1952)...................................................................................................................13
19 Zivotofsky ex rel. Zivotofsky v. Kerry 135 S. Ct. 2076 (2015)..............................................................................................................13
20 Federal Statutes
21 8 U.S.C. § 1373...................................................................................................................... passim
22 28 U.S.C. § 512..............................................................................................................................21
23 28 U.S.C. § 2201............................................................................................................................23
24 42 U.S.C. § 10602..........................................................................................................................15
25 42 U.S.C. § 10603..........................................................................................................................15
26 42 U.S.C. § 3752(5)(D)....................................................................................................................6 27 Federal Rules 28 Fed. R. Civ. P. 25 .............................................................................................................................2

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Fed. R. Civ. P. 56 .............................................................................................................................2 1

2

Federal Regulations 28 C.F.R. § .25 ...............................................................................................................................21

3 8 C.F.R. § 287.7 .........................................................................................................................4, 19
4 Constitutional Provisions 5 U.S. Const. art. I, § 8, cl. 1.............................................................................................................12

6 State Statutes Cal. Civ. Code § 1798.92....................................................................................................................... 11
7 Cal. Civ. Code § 56.05........................................................................................................................... 11
8 San Francisco Administrative Code
9 S.F. Admin. Code § 12H........................................................................................................ 5, 10, 11, 12
10 S.F. Admin Code § 12H.2................................................................................................................ 10, 11
11 S.F. Admin. Code § 12I ............................................................................................................... 5, 10, 12 S.F. Admin. Code § 12I.3 ............................................................................................................ 5, 10, 12
12

13 Other References

14

Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel

15 52 Admin. L. Rev. 1303 (2000).................................................................................................21

16 Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016) (as rejected by Senate, Jul. 6, 2016) ..........................................................................................................................................13
17
Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015) (as rejected by 18 Senate, Oct. 20, 2015)................................................................................................................13

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that on Wednesday, October 4, 2017, at 2:00 p.m., or as soon

3 thereafter as the matter can be heard, in Courtroom 2 on the 17th Floor of the United States District

4 Court for the Northern District of California, in San Francisco, California, the Honorable William H.

5 Orrick presiding, Plaintiff City and County of San Francisco will move for summary judgment or, in

6 the alternative, partial summary judgment. San Francisco bases this motion on this Notice of Motion

7 and Motion; the accompanying memorandum of points and authorities; the declarations and request

8 for judicial notice, and the exhibits thereto; the records on file in this action, and any other written or

9 oral evidence or argument as may be presented at or before the time this motion is heard by the Court.

10

San Francisco respectfully requests that the Court enter judgment in its favor as to each of its

11 claims for relief on the grounds that the undisputed evidence shows that: (1) San Francisco’s laws

12 comply with 8 U.S.C. § 1373, (2) the funding restriction in Executive Order 13,768 violates the United

13 States Constitution’s separation of powers principles, Spending Clause, and Tenth Amendment, and

14 (3) the enforcement directive in Executive Order 13,768 violates the Tenth Amendment to the United

15 States Constitution. In the alternative, San Francisco respectfully requests that the Court enter

16 judgment as to those claims that the Court sees as fit for resolution at this time.

17

18

MEMORANDUM OF POINTS AND AUTHORITIES

19

INTRODUCTION

20 San Francisco’s lawmakers have determined that San Francisco is safer, healthier, and stronger
21 when all of its residents—including undocumented immigrants—can use city services like public
22 health programs and schools, and can report crimes and aid the police as witnesses, without fearing
23 deportation. Accordingly, San Francisco’s sanctuary laws limit its employees’ assistance with federal
24 immigration enforcement, leaving it to the federal government to implement its immigration laws.
25 This local policy choice offends President Trump and his Administration, which has
26 persistently and perniciously sought to coerce San Francisco and other jurisdictions into abandoning
27 their sanctuary laws. On his fifth day in office President Trump issued an Executive Order that directs
28

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1 withholding federal funds from sanctuary cities and bringing enforcement actions against them,

2 specifically targeting cities that the federal government determines do not comply with 8 U.S.C.

3 § 1373 (“Section 1373”). And the threats have not abated. Throughout this litigation President Trump

4 and his Administration have continued to threaten action under the Executive Order to coerce

5 compliance with their demands—notwithstanding the Court’s preliminary injunction order and an

6 Attorney General memorandum purporting to limit implementation of the Executive Order.

7

The Trump Administration and Defendants have also tried to coerce local jurisdictions to

8 enforce federal immigration policy by asserting an overly broad interpretation of Section 1373 that is

9 unmoored from its text. This limited statute concerns only how local jurisdictions may regulate

10 communications with ICE about individuals’ immigration status, and says nothing at all about other

11 kinds of local assistance with immigration enforcement. While the Court has not yet had the

12 opportunity to consider San Francisco’s claim that its laws comport with Section 1373, a definitive

13 interpretation of Section 1373 as applied to San Francisco’s sanctuary laws is an essential bulwark

14 against the Administration’s continued coercive efforts. So long as President Trump and his

15 Administration perpetuate uncertainty about what Section 1373 requires—by, for example, suggesting

16 that jurisdictions violate Section 1373 by not complying with immigration detainers or otherwise

17 actively assisting ICE agents—then they can use threats to try to bully jurisdictions into submission.

18

To put an end to these unconstitutional threats and protect its legitimate local policy decisions,

19 San Francisco moves for summary judgment and seeks declaratory relief and a permanent injunction

20 against all Defendants.1

21

LEGAL STANDARD

22

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file

23 and any affidavits show that there is no genuine issue as to any material fact and that the moving party

24 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The purpose of summary judgment

25 “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477

26

27

1 Elaine C. Duke became Acting Secretary of the Department of Homeland Security on July

31, 2017, thereby replacing former Secretary of the Department of Homeland Security John F. Kelly

28 as a Defendant, pursuant to Fed. R. Civ. P. 25(d).

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1 U.S. 317, 323–24 (1986). Here, there are no disputed facts related to San Francisco’s claims, and those

2 claims present pure questions of law that are appropriate and ripe for the entry of judgment. See

3 Delbon Radiology v. Turlock Diagnostic Ctr., 839 F. Supp. 1388, 1391 (E.D. Cal. 1993).

4 I.
5

BACKGROUND The Executive Order And Section 1373

6

On January 25, 2017, President Trump issued Executive Order 13,768, titled “Enhancing

7 Public Safety in the Interior of the United States.” See Request for Judicial Notice in Support of Mot.

8 for Summary Judgment, or in the Alternative, Partial Summary Judgment (“RJN”) Exh. A (“Executive

9 Order”). The Executive Order carried out President Trump’s longstanding vow to put an “end” to

10 sanctuary cities by ensuring that “[c]ities that refuse to cooperate with federal authorities will not

11 receive taxpayer dollars.” RJN Exh. B at 3; see also RJN Exh. C at 2. The Executive Order states that

12 “[s]anctuary jurisdictions across the United States willfully violate Federal law,” Executive Order § 1,

13 and announces an Executive Branch policy to “[e]nsure that jurisdictions that fail to comply with

14 applicable Federal law do not receive Federal funds, except as mandated by law,” id. § 2. To that end,

15 Section 9(a) of the Executive Order contains a Funding Restriction stating:

[T]he Attorney General and the Secretary, in their discretion and to the extent

16

consistent with law, shall ensure that jurisdictions that willfully refuse to

comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

17

Federal grants, except as deemed necessary for law enforcement purposes by

the Attorney General or the Secretary. The Secretary has the authority to

18

designate, in his discretion and to the extent consistent with law, a jurisdiction

as a sanctuary jurisdiction. 19

20 Section 9(a) also contains an Enforcement Directive instructing that “[t]he Attorney General shall take

21 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a

22 statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

23

President Trump tethered his Executive Order to Section 1373, which provides that a “local

24 government entity or official may not prohibit, or in any way restrict, any government entity or official

25 from sending to, or receiving from, [federal immigration officials] information regarding the

26 citizenship or immigration status . . . of any individual,” or from “maintaining such information.” In

27 the Executive Order and elsewhere, Defendants have indicated an expansive view of Section 1373.

28 Section 9(a) of the Executive Order defines “sanctuary jurisdictions” as those that “willfully refuse to

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1 comply with 8 U.S.C. 1373,” and Section 9(b) equates sanctuary jurisdictions with those listed on 2 Immigration and Customs Enforcement (“ICE”) Declined Detainer Outcome Reports.2 The White

3 House has characterized sanctuary cities as violating Section 1373 and criticized “[s]anctuary cities,

4 like San Francisco” for “block[ing] their jails from turning over criminal aliens to Federal authorities

5 for deportation.” RJN Exh. E at 1. The Department of Justice specifically linked Section 1373 to ICE

6 detainers in a 2016 Office of the Inspector General memorandum that analyzed ten jurisdictions’

7 compliance with Section 1373 and stated that detainer policies “may be causing local officials to

8 believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all

9 respects . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” RJN Exh.

10 F at 8. And in recent congressional hearings, ICE Director Thomas Homan testified that over 100

11 additional jurisdictions violated Section 1373 under the Executive Order because they “have some sort 12 of policy where they don’t honor detainers or allow us access to the jails.”3 RJN Exh. G at 34.

13

The Executive Order threatens enforcement action and massive funding cuts for jurisdictions

14 that do not comply with Section 1373. The plain language of the Executive Order, as well as

15 Defendants’ own statements, indicate that the Funding Restriction applies to all current and future

16 federal funds, or at least to all current and future federal grants. See Executive Order § 2(c) (referring

17 to “Federal funds”); id. § 9(c) (referring to “all Federal grant money that currently is received by any

18 sanctuary jurisdiction”). The press statement announcing the Executive Order declared: “We are going

19 to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants. The

20

21

2 ICE detainers are requests by ICE that a state or local law enforcement agency voluntarily

hold individuals after their release date to provide ICE agents extra time to decide whether to take 22 those individuals into federal custody and then deport them. See 8 C.F.R. § 287.7. ICE’s Declined

Detainer Outcome Report lists jurisdictions that “Restrict Cooperation with ICE,” RJN Exh. D at 10, 23 and identifies detention centers with the “highest volume of detainers issued” that “do not comply with

detainers on a routine basis,” id. at 2.

24

3 This contrasts with Defendants’ representation in certain court papers, where they appear to

25 concede that “8 U.S.C. § 1373 relates only to the sharing of information,” Reply ISO Defs’ Motion to Dismiss at p. 8 (internal punctuation omitted), and “that compliance by State authorities with

26 immigration detainers is voluntary, not mandatory,” Lunn v. Commonwealth, 78 N.E.3d 1143, 1152 (Mass. 2017). These shifting interpretations in court and outside court—coupled with Defendants’

27 steadfast refusal to admit that San Francisco complies with Section 1373—leave San Francisco in need of a court order clarifying the scope of Section 1373.

28

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1 American people are no longer going to have to be forced to subsidize this disregard for our laws.”

2 RJN ¶ 8. President Trump described “defunding” as a “weapon” that could deprive sanctuary cities of

3 “the money they need to properly operate as a city or a state.” RJN Exh. H at 4. And Attorney General

4 Sessions stated that the Department of Justice would “take all lawful steps to claw-back any funds 5 awarded to a jurisdiction that willfully violates Section 1373.” RJN Exh. I at 2.4

6

Through these threats, President Trump used the Executive Order to coerce some jurisdictions

7 into abandoning their sanctuary policies and complying with detainer requests. For instance, the day

8 after the President issued the Executive Order, Miami-Dade County Mayor Carlos Giménez instructed

9 the county’s interim corrections director to “fully cooperate” with the federal government and comply

10 with all immigration detainer requests, changing its previous policy of not complying with detainers

11 unless reimbursed by the federal government. See RJN Exh. J. The White House responded by

12 praising Miami-Dade County for “understanding the importance of this order,” RJN Exh. K at 4, and

13 the Attorney General held a press conference there announcing “that Miami-Dade is now in full

14 compliance and eligible for federal law enforcement grant dollars.” RJN Exh. L at 1. 15 II. San Francisco’s Irreparable Injury

16

San Francisco has had sanctuary laws in place for nearly three decades. Those laws were most

17 recently amended in July 2016, and are currently codified in two chapters of the Administrative Code:

18 Chapters 12H and 12I. Chapter 12H prohibits San Francisco departments, agencies, officers, and

19 employees from using San Francisco funds or resources to assist in enforcing federal immigration law

20 or to gather or disseminate information regarding an individual’s release status, or other confidential

21 identifying information, unless such assistance is required by federal or state law. Chapter 12I

22 prohibits San Francisco law enforcement officials from detaining an individual, otherwise eligible for

23 release from custody, solely on the basis of a civil detainer request. S.F. Admin. Code § 12I.3. It

24 further provides that law enforcement officers shall not provide ICE with advance notice that an

25 individual will be released from custody, unless the individual meets certain criteria. Id.

26

27

4 As the Court is aware, Defendants offered a narrower construction of the Executive Order in

an Attorney General Memorandum issued during the course of this litigation. RJN Exh. S. As

28 discussed further in Section III, infra, this construction should not be credited.

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1

San Francisco relies on federal funds for critical programs and services. In the 2016–17 fiscal

2 year, San Francisco’s annual operating budget included $1.2 billion in federal funds, or 13 percent of

3 the total budget. See Declaration of Ben Rosenfield in Support of CCSF’s Mot. for Summary

4 Judgment (“Rosenfield Decl.”) ¶ 10. San Francisco also receives approximately $800 million in

5 federal multi-year grants that are not reflected in the annual budget. Id. ¶ 13. In total, San Francisco

6 expects to receive approximately one billion dollars in federal grants ($200 million in annual federal

7 grants plus $800 million in multi-year federal grants) and another one billion dollars in annual

8 entitlement payments from the federal government. Rosenfield Decl. ¶ 51. San Francisco uses these

9 federal funds to pay for core services including medical care and social services for its most vulnerable

10 residents, id. ¶ 11; public infrastructure projects such as bridges, roads, and public transportation, id.

11 ¶ 13; and public safety programs, id. ¶ 33–35. Losing substantial federal funding would have

12 catastrophic effects on critical programs: Federal funding accounts for 100 percent of the City’s

13 Medicare funding, id. ¶ 42; almost 40 percent of the budget for the City’s Department of Public

14 Health, id. ¶ 26; approximately 33 percent of the budget for San Francisco’s Human Services Agency,

15 id. ¶ 20; and nearly 30 percent of the budget for San Francisco’s Department of Emergency

16 Management, id. ¶ 31. The Executive Order thus creates extreme pressure for San Francisco to change

17 its laws in order to remain eligible for federal funds.

18

Additionally, as a recipient of certain federal grants, San Francisco must certify under penalty

19 of perjury that it complies with Section 1373.5 San Francisco has taken steps to ensure compliance

20 with Section 1373, and believes that it complies, but Defendants’ shifting interpretations of Section

21 1373 give San Francisco pause in making this certification. The Executive Order defines sanctuary

22 jurisdictions as those that willfully violate Section 1373, and Defendants “hold up San Francisco as an

23 exemplar of a sanctuary jurisdiction.” Order Granting Motion to Enjoin Section 9(a) of Executive

24

25

5 For instance, San Francisco receives funding under the Edward Byrne Memorial Justice

Assistance Grant Program (“JAG”). Rosenfield Decl. ¶ 33. JAG grant recipients are required to certify

26 compliance with applicable federal statutes, see 42 U.S.C. § 3752(5)(D), and in 2016, DOJ issued

guidance stating that Section 1373 is an applicable federal law. RJN Exh. M and N. In 2017, DOJ

27 announced a specific 1373 compliance condition, with detailed requirements and an additional

certification of compliance with Section 1373 that must be signed under penalty of perjury by a

28 jurisdiction’s chief legal officer (e.g., the Attorney General or City Attorney). RJN Exh. O and P.

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1 Order 13768 (Dkt. No. 82) (“PI Order”) at 26, see generally id. at 22-27. The Attorney General has

2 specifically criticized San Francisco for its “sanctuary policies,” suggested that these policies “violate

3 federal law,” and argued that “this disregard for the law must end.” RJN Exh. I at 2. Representative

4 John Culberson—the self-proclaimed “CFO of the Department of Justice,” RJN Exh. Q at 6, who

5 chairs the House of Representatives subcommittee that controls DOJ spending—classifies San

6 Francisco as a sanctuary city and claims that sanctuary cities “violate a federal law enacted in 1996 [8

7 U.S.C. § 1373] to ensure total cooperation between local, state and federal agencies.” RJN Exh. R at 5.

8 The Department of Justice itself issued a memorandum that identifies San Francisco as having laws

9 that could run afoul of Section 1373. RJN Exh. F at 6 n.7. 10 III. Procedural History

11

The Executive Order poses a grave threat to San Francisco, whose sanctuary city policies

12 comply with Section 1373, but not with Defendants’ strained interpretation of this section. In response

13 to this threat, San Francisco filed suit on January 31, 2017. San Francisco’s Second Amended

14 Complaint (“SAC”) raises three claims. First, the SAC seeks declaratory relief that San Francisco’s

15 sanctuary laws comply with Section 1373. SAC ¶¶ 144-48. Second, the SAC claims that the Executive

16 Order’s Funding Restriction violates the U.S. Constitution’s Tenth Amendment, Spending Clause, and

17 separation of powers structure. SAC ¶¶ 149-53. Third, the SAC alleges that the Executive Order’s

18 Enforcement Directive violates the Tenth Amendment. SAC ¶¶ 154-57.

19

Shortly after filing its complaint, San Francisco moved for a preliminary injunction, which the

20 Court granted on April 25, 2017. See PI Order (Dkt. 82). One month later, the Attorney General

21 published a two-page Memorandum to Grant-Making Components of the Department of Justice (“AG

22 Memorandum”), which purported to narrow application of the Executive Order. See RJN Exh. S.

23 Defendants moved for reconsideration of the PI Order and for dismissal of the case based in large part

24 on the AG Memorandum. See Dkt. Nos. 107, 111. The Court rejected this effort and denied both

25 motions. See Order Denying the Government’s Motions for Reconsideration and to Dismiss with

26 Regards to the City and County of San Francisco and County of Santa Clara (Dkt. No. 146) (“Recon.

27 Order”). While Defendants characterized the AG Memorandum as “binding” and “authoritative,”

28 Defs’ Motion to Dismiss (Dkt. No. 111) at 2, this Court found it to be nothing of the sort. The Court

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1 “conclude[d] that the AG Memorandum is functionally an ‘illusory promise’ to enforce the Executive

2 Order narrowly and, as such, does not resolve the constitutional claims that the Counties have brought

3 based on the Order’s language.” Recon. Order at 13-14. Ultimately, as the Court recognized, the AG

4 Memorandum leaves Defendants perfectly free to continue to implement the Executive Order

5 according to its plain language, and to strip federal funding from jurisdictions like San Francisco. 6 IV. Continued Threats

7

Indeed, the Administration’s recent statements confirm that it will continue to threaten San

8 Francisco and other sanctuary cities with exactly these consequences. On June 28, 2017, President

9 Trump reiterated his plan to “end[] the practice of sanctuary cities that refuse to turn over criminal

10 illegal aliens to Federal authorities.” RJN Exh. B at 2. On July 12, 2017, the Attorney General once

11 again criticized San Francisco for having sanctuary city policies, which he described as a “refus[al] to

12 cooperate with federal immigration authorities regarding illegal aliens who commit crimes.” RJN Exh.

13 T at 2. And on August 16, 2017, the White House issued a “Fact Sheet” titled “Donald J. Trump and

14 Attorney General Sessions Stand Up Against Lawless Sanctuary Cities.” RJN Exh. U. The Fact Sheet

15 characterizes sanctuary cities as “lawless” and states that “[o]ne of President Trump’s first Executive

16 Orders informed sanctuary cities that failure to fully abide by Federal immigration laws would

17 jeopardize their access to certain Federal grant money.” Id. at 2. The “Fact Sheet” fails to mention that

18 this part of the Executive Order is enjoined, and instead suggests that the Attorney General is

19 enforcing the Executive Order, with a sub-bullet point stating that “[l]ast month, DOJ laid out new

20 guidelines requiring jurisdictions to cooperate with Federal immigration authorities in order to receive

21 Edward Byrne Memorial Justice Assistance Grants, a leading source of Federal law enforcement

22 funding.” Id. These statements maintain the coercive threat of the Executive Order—and Defendants’

23 broad interpretation of Section 1373—notwithstanding the narrower interpretations Defendants have at

24 times expressed in court and in the AG Memorandum.

25 I.
26

ARGUMENT San Francisco Complies With Section 1373.

27

Defendants seek to compel assistance with federal immigration enforcement by imposing

28 Section 1373 compliance conditions on an increasing number of federal grants, while maintaining a

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1 cloud of uncertainty about Section 1373’s scope. This puts San Francisco and other jurisdictions in an

2 untenable position. Defendants concede that whether San Francisco complies with Section 1373 is a

3 purely legal question, but steadfastly refuse to admit what is clear from the text of San Francisco’s

4 sanctuary city laws: these laws comply with Section 1373. Defs. Answer (Dkt. No. 152) ¶ 38.

5

A. Section 1373 Imposes Narrow Obligations About Citizenship Or Immigration Status Information.

6 The plain text of Section 1373 imposes specific and narrow obligations. It requires that San
7 Francisco “not prohibit, or in any way restrict” any of its departments or officials from “sending to, or
8 receiving from, the Immigration and Naturalization Service information regarding the citizenship or
9 immigration status, lawful or unlawful, of any individual,” 8 U.S.C. § 1373(a), “maintaining such
10 information,” id. § 1373(b), or “exchanging such information with any other Federal, State, or local
11 government entity,” id. Because San Francisco’s laws create no such prohibitions or restrictions, they
12 are consistent with Section 1373.
13 By its plain terms, Section 1373 does not address any information other than citizenship or
14 immigration status, nor does it impose any other obligations. It does not require state or local
15 governments to collect citizenship or immigration status information. RJN Exh. M at 1. It does not
16 require them to take any action when they receive such information. Id. And it does not require them
17 to comply with detainer requests. See Reply ISO Defs’ Motion to Dismiss at 7-8.
18 Because Section 1373’s text shows that it addresses only prohibitions or restrictions on
19 exchanging citizenship or immigration status information, or maintaining this information, this Court
20 need look no further in interpreting Section 1373. Chevron, U.S.A., v. Natural Res. Def. Council, Inc.,
21 467 U.S. 837, 842-44 (1984); see also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our
22 inquiry must cease if the statutory language is unambiguous . . . .”). Indeed, other cases construing
23 Section 1373 have found that its plain text cabins its reach. For instance, Steinle v. City and County of
24 San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017), held that “no plausible reading of ‘information
25 regarding . . . citizenship or immigration status’ encompasses the release date of an undocumented
26 inmate.” Id. at 1015. Further, if Congress “had intended to bar all restriction of communication
27 between local law enforcement and federal immigration authorities . . . it could have included such
28

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1 language in the statute.” Id. Similarly, the California Court of Appeal held that Section 1373 governs

2 “only communications with ICE.” Sturgeon v. Bratton, 174 Cal. App. 4th 1407, 1421 (2009). The

3 court rejected the argument that Section 1373 imposes additional prohibitions, namely, “restrictions on

4 local entities obtaining . . . [immigration] information.” Id. (emphasis in original).

5

Although Section 1373’s statutory language contains no ambiguity, Defendants have at times

6 advanced a broader construction that would require local jurisdictions to respond to ICE detainer or

7 notification requests. See pp. 3–4, supra. But to read Section 1373 so broadly would raise serious

8 constitutional concerns. As this Court has observed, treating detainer requests as mandatory “violates

9 the Tenth Amendment’s provisions against conscription.” PI Order at 40. And as described more fully

10 below, the Tenth Amendment precludes the federal government from compelling state and local

11 government agencies to enforce federal law. See pp. 18–20, infra. Accordingly, even if Section 1373

12 were ambiguous as to whether it imposes affirmative obligations on localities—and it is not—the

13 established principle of constitutional avoidance would require that Section 1373 be construed

14 narrowly, in accordance with its plain text, to avoid these concerns. See Rust v. Sullivan, 500 U.S. 173,

15 191 (1991). Because a broader interpretation would raise serious constitutional questions, at a

16 minimum, the constitutional avoidance doctrine must apply. Id.; see also Gregory v. Ashcroft, 501

17 U.S. 452, 469 (1991) (declining to interpret statute in a way that might “intrude[] on traditional state

18 authority” (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16 (1981))).

19

B. San Francisco’s Laws Comply with Section 1373.

20

The plain text of San Francisco’s sanctuary laws imposes other restrictions, but allows the

21 communications that Section 1373 addresses. Chapter 12H generally forbids use of City resources to

22 “assist in the enforcement of Federal immigration law” and specifically prohibits using City resources

23 to “gather or disseminate information regarding release status of individuals or any other such personal

24 information.” S.F. Admin. Code § 12H.2. Chapter 12I prohibits responding to civil immigration

25 detainer requests from federal immigration officials and provides that San Francisco employees may

26 only respond to requests for notification of release status in certain circumstances. Id. § 12I.3.

27

These terms comply with Section 1373 because they do not prohibit, or in any way restrict, San

28 Francisco employees from communicating information related to citizenship or immigration status.

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1 Nor do they prohibit maintaining this information. Rather, Chapter 12H restricts San Francisco

2 employees from “disseminat[ing] information regarding release status of any individual or any other

3 such personal information” unless required to do so by federal law. S.F. Admin. Code § 12H.2 4 (emphases added).6 Neither “release status” nor “personal information” is information about

5 “immigration” or “citizenship status” under Section 1373. “Release status” refers to whether an

6 individual is in law enforcement custody—a status unrelated to immigration status. And “personal

7 information” means “any confidential, identifying information about an individual, including, but not

8 limited to, home or work contact information, and family emergency contact information.” This does

9 not include more general descriptors such as citizenship or immigration status, which cannot be used

10 to identify or contact an individual. See Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (relying 11 “on the principle of noscitur a sociis—a word is known by the company it keeps”).7

12

To the extent there could be any ambiguity about the meaning of “release status or any other

13 such personal information,” the legislative history of Chapter 12H confirms that this phrase does not

14 mean an individual’s immigration status. Chapter 12H previously prohibited sharing information about

15 “immigration status,” but that prohibition was amended in July 2016 to, inter alia, ensure compliance

16 with Section 1373. The 2016 amendments replaced “immigration status” with “release status and other

17 such personal information,” and the current text allows employees to share information about an

18 individual’s citizenship or immigration status. Indeed, San Francisco explicitly advised all employees

19 about their ability to share information about an individual’s citizenship or immigration status

20 information in a January 2017 memorandum from the Director of the San Francisco Department of

21

6 Chapter 12H’s general prohibition against “using City funds or resources to assist in the

22

enforcement of Federal immigration law” does not prohibit employees from sharing immigration information with ICE. The more specific language about “release status” and other “personal

23

information” controls over this general language. See, e.g., State Dep’t of Pub. Health v. Superior Court, 60 Cal. 4th 940, 960 (2015). And even if the language were ambiguous, the Board of

24

Supervisors’ 2016 amendments, discussed below, show a clear intent to allow the communications Section 1373 requires. See pp. 11–12, infra.

25

7 Similar definitions of “personal” and “confidential, identifying information” in other laws

confirm that these terms do not include an individual’s citizenship or immigration status. For instance,

26 California law uses these terms to refer to information that should be protected because it can reveal a

person’s identity. See, e.g., Cal. Civ. Code § 56.05(j) (defining “personal identifying information” to

27 include a patient’s name, address, electronic mail address, telephone number, or social security

number, or other information that, alone or in combination with other publicly available information,

28 reveals the individual’s identity”); id. § 1798.92(c) (providing a similar definition).

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1 Human Resources. RJN Exh. V. The memorandum summarized the requirements of Chapters 12H and

2 12I but also reminded San Francisco employees that “federal law states that a ‘local government entity

3 or official may not prohibit, or in any way restrict, any government entity or official from sending to,

4 or receiving from, the Immigration and Naturalization Service information regarding the citizenship or

5 immigration status, lawful or unlawful, of any individual (8 U.S.C. § 1373).” Id. at 1.

6

Chapter 12I, similarly, does not restrict or prohibit sharing immigration-related information

7 with the federal government. Rather, Chapter 12I is directed to ICE detainer and notification requests,

8 and limits the circumstances in which San Francisco officials may respond to these requests. S.F.

9 Admin. Code § 12I.3. This Chapter reflects San Francisco’s considered judgment that these requests

10 threaten community stability and strain San Francisco’s resources. See pp. 19–20, infra. But the

11 provision does not prohibit any San Francisco officer or employee from communicating an

12 individual’s immigration or citizenship status. And under the only permissible reading of Section

13 1373, see p. 10, supra, San Francisco’s restrictions on carrying out detainer requests do not “in any

14 way restrict” the sharing of immigration-related information with ICE.

15 II. 16

The Executive Order Is Unconstitutional. A. The Executive Order Violates Separation Of Powers Principles.

17

By declaring “sanctuary jurisdictions” ineligible to receive federal grants, the Executive Order

18 violates fundamental separation of powers principles. The Constitution grants Congress—not the

19 President—the federal spending power, including the power to impose conditions on federal funds.

20 See U.S. Const. art. I, § 8, cl. 1; see also South Dakota v. Dole, 483 U.S. 203, 206 (1987) (“Incident to

21 [the spending power], Congress may attach conditions on the receipt of federal funds . . . .”) (emphasis

22 added). While the President may veto an appropriations bill in its entirety, the President may not

23 amend, repeal, or alter the terms of Congressional appropriations. Clinton v. City of New York, 524

24 U.S. 417, 438 (1998). Nor may the President withhold funds that Congress has appropriated. Indeed,

25 “[w]here Congress has failed to give the President discretion in allocating funds, the President has no

26 constitutional authority to withhold such funds and violates his obligations to faithfully execute the

27 laws duly enacted by Congress if he does so.” PI Order at 36 (citing City of New York, 524 U.S. at

28 439; U.S. Const. art. I, § 8, cl. 1.); see also Train v. City of New York, 420 U.S. 35, 41 (1975) (holding

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1 Administrator of Environmental Protection Agency violated the Constitution by declining to allot to

2 the states the entire amount Congress appropriated).

3

Here, there can be no question that the Executive Order violates these constitutional principles

4 by purporting to give the Attorney General and the Secretary the power to condition receipt of federal

5 funds on compliance with Section 1373. Executive Order § 9(a). Congress has not specifically

6 conditioned the receipt of any federal funds on compliance with Section 1373, or delegated to the

7 Executive Branch the authority to impose an eligibility requirement based on Section 1373. To the

8 contrary, Congress has repeatedly rejected legislation that would defund or impose funding restrictions

9 on sanctuary jurisdictions. See, e.g., Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

10 (2016) (as rejected by Senate, Jul. 6, 2016); Stop Sanctuary Policies and Protect Americans Act, S.

11 2146, 114th Cong. (2015) (as rejected by Senate, Oct. 20, 2015). Thus, the Executive Order seeks to

12 take measures “incompatible with the expressed or implied will of Congress,” leaving the President’s

13 power “at its lowest ebb . . . .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952)

14 (Jackson, J., concurring). In these situations, the President can act only when the executive’s power is

15 “exclusive” and “conclusive.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015).

16 Because the President does not have the spending power—let alone any “exclusive” or “conclusive”

17 power over federal spending – the Executive Order’s Funding Restriction is unconstitutional.

18

B. The Executive Order Violates The Spending Clause.

19

The Executive Order is also unconstitutional because it purports to exercise the spending

20 power in ways that even Congress could not. Congress’s spending power is not unlimited. Dole, 483

21 U.S. at 207. Rather, the Constitution provides that Congress may enact spending conditions that (1) are

22 unambiguous and clearly stated in advance, (2) relate to Congress’s purpose in spending the funds, (3)

23 are not unduly coercive, (4) do not compel local governments to engage in unconstitutional conduct,

24 and (5) promote the general welfare. Id. at 207–08. Violating any one of these requirements would

25 render the Funding Restriction unconstitutional. Id. Here, the Funding Restriction violates all of them.

26

1. The Funding Restriction Violates The Unambiguousness Requirement.

27

The Funding Restriction fails because it imposes a new funding condition without stating that

28 condition unambiguously and in advance so that states and local jurisdictions can “exercise their

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1 choice” about whether to accept the funds “knowingly, cognizant of their participation.” Dole, 483

2 U.S. at 203 (internal quotation marks omitted); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.

3 Ct. 2566, 2602-04 (2012) (“Sebelius”); Pennhurst, 451 U.S. at 17 (“[I]f Congress intends to impose a

4 condition on the grant of federal moneys, it must do so unambiguously.”) “[L]egislation enacted

5 pursuant to the spending power is much in the nature of a contract.” Pennhurst, 451 U.S. at 17. Thus,

6 “[t]he legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the

7 State voluntarily and knowingly accepts” Congress’s terms. Id.

8

Here, San Francisco could not “voluntarily and knowingly” accept the terms set forth in the

9 Executive Order for two reasons. First, the Funding Restriction is far from unambiguous. As this Court

10 recognized, “because the Order does not clearly define ‘sanctuary jurisdictions,’ the conduct that will

11 subject a jurisdiction to defunding under the Order is not fully outlined.” PI Order at 42. Even the

12 government officials charged with enforcing the Executive Order cannot explain what jurisdictions

13 need to do to avoid defunding. See RJN Exh. W at 17 (former DHS Secretary Kelly stating, with

14 respect to the meaning of “sanctuary cities,” “[f]rankly, I don’t really know what it means. I don’t

15 think anyone out there knows what it means . . .”); PI Order at 42 (noting that former DHS Secretary

16 Kelly “stated that he does not ‘have a clue’ how to define ‘sanctuary city’”).

17

Second, the Executive Order seeks to impose a retroactive funding restriction that did not exist

18 when San Francisco agreed to accept the federal funds it is currently slated to receive. San Francisco

19 could not have knowingly accepted the Executive Order’s funding condition when it was “unaware of

20 the condition[]” when it accepted the grants and to this day remains “unable to ascertain what is

21 expected of it.” Pennhurst, 451 U.S. at 17. The “unclear and untimely conditions in the Executive

22 Order” violate the Constitution’s limits on the spending power. PI Order at 38.

23

2. The Funding Restriction Is Not Reasonably Related To Congress’s Purpose In Spending The Funds.

24 The Funding Restriction also violates the requirement that conditions imposed on federal
25 grants must be “reasonably related to the purpose of the expenditure.” New York v. United States, 505
26 U.S. 144, 172 (1992); see also Massachusetts v. United States, 435 U.S. 444, 461 (1978) (holding that
27

28

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1 the “Federal Government . . . may require that state instrumentalities comply with conditions that are 2 reasonably related to the federal interest in particular national projects or programs”).8

3

Here there is no reasonable relationship between funds threatened by the Executive Order and

4 San Francisco’s compliance with Section 1373. The vast majority of federal funds received by San

5 Francisco each year are used to provide critical benefits and services to some of San Francisco’s most

6 needy residents through programs such as Medicare, Medicaid, Temporary Assistance to Needy

7 Families, and Supplemental Nutrition Assistance Programs. See Rosenfield Decl. ¶ 42. There is no

8 conceivable relationship between these entitlement programs and immigration enforcement. Indeed,

9 undocumented persons are not even eligible to participate in most of these programs. Id. Similarly, of

10 the approximately $800 million that San Francisco receives in multi-year grants, most goes to capital

11 projects such as building bridges and public transportation, see Rosenfield Decl. ¶ 13—projects that

12 have no relationship to the immigration enforcement goals of Section 1373.

13

Even grants administered by DHS and the Department of Justice (“DOJ”) usually have no

14 relationship to immigration enforcement. For instance, under the authority of DHS, the Federal

15 Emergency Management Agency (“FEMA”) provides billions of dollars in funding to provide relief

16 from disasters such as earthquakes and fires, and to help local governments develop emergency

17 preparedness systems. See RJN Exh. X. DOJ’s Office on Violence Against Women provides grant

18 funding “designed to develop the nation’s capacity to reduce domestic violence, dating violence,

19 sexual assault, and stalking by strengthening services to victims and holding offenders accountable.”

20 RJN Exh. Y at 1. Likewise, DOJ administers billions of dollars in grant funding under the Victims of

21 Crime Act to help local governments provide compensation and services to victims of child abuse,

22 sexual assault, domestic violence, or other crimes. See 42 U.S.C. §§ 10602(b), 10603(b). None of

23 these programs is “reasonably related” to the funding restriction the Executive Order seeks to impose.

24

25 8 Relying on Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002), Defendants have
26 asserted that the nexus factor is not a “requirement.” But the Supreme Court itself has noted that the “reasonable relationship” standard exists “among other requirements” that limit Congress’s ability to
27 exercise its spending power. New York v. United States, 505 U.S. 144, 167 (1992) (emphasis added). Indeed, the nexus requirement is particularly important because, without it, “the spending power could
28 render academic the Constitution's other grants and limits of federal authority.” Id.

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3. The Funding Restriction Is Unduly Coercive. 1

2

While the federal government “may use its spending power to create incentives for States,” the

3 spending power may not be used to “exert a power akin to undue influence.” Sebelius, 132 S. Ct. at

4 2602 (opinion of Roberts, C.J.) (internal quotation marks omitted). Thus, when “pressure turns into

5 compulsion, the legislation runs contrary to our system of federalism.” Id.

6

The Funding Restriction crosses that line by threatening a substantial percentage of San

7 Francisco’s budget, and a large portion of the funding stream for certain programs and services.

8 Federal funds constitute approximately 13 percent of the City’s total annual operating budget, and an

9 additional $800 million in federal multi-year grants. Rosenfield Decl. ¶¶ 10, 13. Threatened funds

10 include 100 percent of funding for certain programs, such as Medicare, that are critical to the lives of

11 San Francisco’s residents. Rosenfield Decl. ¶ 29. Federal funds constitute approximately 30 percent of

12 the budget for San Francisco’s Department of Emergency Management, id. ¶¶ 25–27, 33 percent of the

13 budget for San Francisco’s Human Services Agency, id. ¶¶ 13–18, and nearly 40 percent of the budget

14 for San Francisco’s Department of Public Health (“DPH”), id. ¶¶ 19–24, to name just a few examples.

15 San Francisco simply cannot make up for this loss with local revenue sources. Id. ¶¶ 36–37. Indeed,

16 the Funding Restriction could implicate $2 billion in funds that San Francisco expects to receive—and

17 in many cases, has already spent. Id. ¶¶ 11, 34.

18

It would be catastrophic for San Francisco to lose all—or a substantial amount of—federal

19 funds threatened by the Executive Order. Id. ¶ 36; Declaration of Melissa Whitehouse in Support of

20 CCSF’s Mot. for Summary Judgement (“Whitehouse Decl.”) ¶ 16-17. Thus, a threat of this magnitude

21 “crosse[s] the line distinguishing encouragement from coercion.” Sebelius, 132 S. Ct. at 2603 (opinion

22 of Roberts, C.J.). In Sebelius, the impending loss of over 10 percent of a state’s budget was deemed

23 “economic dragooning that leaves the States with no real option but to acquiesce.” Id. at 2605. Here,

24 the Funding Restriction threatens over 13 percent of San Francisco’s budget, plus an additional $800

25 million in off-budget grants. As in Sebelius, the Funding Restriction “is much more than ‘relatively

26 mild encouragement’—it is a gun to the head.” Id. at 2604.

27

28

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4. The Funding Restriction Seeks To Compel The States To Engage In

1

Unconstitutional Conduct.

2

Congress’s spending power “may not be used to induce the States to engage in activities that

3 would themselves be unconstitutional.” Dole, 483 U.S. at 210. The Executive Order does exactly that

4 by threatening to withdraw federal funds from “sanctuary jurisdictions,” which the Attorney General

5 equates with jurisdictions that refuse to comply with all ICE detainer requests. See pp. 3–4, supra.

6

“It is well established that an arrest without probable cause violates the Fourth Amendment and

7 gives rise to a claim for damages under § 1983.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th

8 Cir. 2011) (internal quotation marks omitted). Because ICE detainer requests need not—and often do

9 not—establish probable cause for a local jurisdiction to detain an individual, to “blindly honor” these

10 requests risk violating the Fourth Amendment rights of detainees. Morales v. Chadbourne, 793 F.3d

11 208, 215–217 (1st Cir. 2015); see also Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST,

12 2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014). Thus, the Funding Restriction seeks to compel

13 jurisdictions to adopt policies that violate—or at least show deliberate indifference to—Fourth

14 Amendment rights. See Trujillo-Santoyo v. United States, No. 5:16-cv-855-OLG, 2017 WL 2896021,

15 at *13 (W.D. Tex. June 5, 2017) (holding county’s policy of “honoring ICE detainer requests and of

16 assuming the existence of probable cause based on the existence of a detainer request” constitutes

17 “deliberate indifference” to constitutional rights sufficient to establish municipal liability).

18

5. Congress Has Not Determined That Defunding Sanctuary Jurisdictions

Promotes The General Welfare.

19

20

Finally, the Funding Restriction fails because Defendants cannot establish that the Funding

21 Restriction promotes the General Welfare. “In considering whether a particular expenditure is intended

22 to serve general public purposes, courts should defer substantially to the judgment of Congress.” Dole,

23 483 U.S. at 207. Congress has repeatedly rejected attempts to defund sanctuary jurisdictions or

24 condition receipt of federal funds on compliance with Section 1373. See p. 13, supra. The President

25 cannot impose funding restrictions that are contrary to the will of Congress. Although the President

26 disagrees with Congress’s policy choice, decisions about whether spending promotes the general

27 welfare appropriately rest with Congress—not the President. Dole, 483 U.S. at 207.

28

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C. The Executive Order Violates The Tenth Amendment. 1

2

The Executive Order also offends the Tenth Amendment’s guarantee that “[t]he powers not

3 delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the

4 States respectively, or to the people.”9 The Tenth Amendment embodies the basic principle that the

5 “Federal Government may not compel the States to enact or administer a federal regulatory program.”

6 New York, 505 U.S. at 188. But that is the very purpose of the Executive Order. As described above,

7 the Funding Restriction puts a “gun to the head” of state governments by threatening to withhold

8 billions of dollars in federal funding. See p. 16, supra.; see also LaCroix v. Junior, Case No. F17-376,

9 2017 WL 837477, at *5 (Fla. Cir. Ct. Mar. 3, 2017) (“[C]oercion achieved by financial starvation is no

10 less effective than coercion achieved at sword’s point. The former may take a little longer than the

11 latter; but it may be more painful too.”). The Enforcement Provision is similarly coercive, threatening

12 unspecified “enforcement action” against any jurisdiction that the Attorney General deems to be in

13 violation of Section 1373, or which “has in effect a statute, policy, or practice that prevents or hinders

14 the enforcement of federal law.” Executive Order § 9(a). Through these threats of defunding and

15 enforcement action, the Executive Order coerces state and local governments to change their sanctuary

16 policies, thereby impermissibly “forcing the States to submit to another federal instruction,” New York,

17 505 U.S. at 176, and commandeering local officials to administer federal immigration law, see Printz

18 v. United States, 521 U.S. 898, 935 (1997).

19

This commandeering is particularly stark in the context of detainers, although it also exists in

20 other applications of the Executive Order.10 The Executive Order coerces local jurisdictions to comply

21 with civil detainer requests by threatening the withdrawal of federal funding or another unspecified

22

23

9 Local governments are treated the same as state governments for purposes of the Tenth Amendment. Printz v. United States, 521 U.S. 898, 931 n.15 (1997); Envtl. Def. Ctr., Inc. v. EPA, 344

24 F.3d 832, 847 (9th Cir. 2003).

10 The Administration has suggested that local governments must take other steps to administer 25 federal immigration law, such as providing ICE access to jails and informing personnel about the

26

content of Section 1373. See pp. 3–4, supra; see also RJN Exh. M at 1 (“Your personnel must be informed that . . . federal law does not allow any government entity or official to prohibit the sending

27 or receiving of information about an individual’s citizenship or immigration status with any federal, state or local government entity and officials.”).

28

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1 form of punishment if they do not comply. See pp. 3–4, supra; see also RJN Exh. I at 1 (providing that

2 the failure to honor civil detainer requests is a policy that “frustrate[s] th[e] enforcement of

3 immigration laws”). Put simply, the Executive Order seeks to turn detainer “requests” into detainer

4 demands, in violation of the Tenth Amendment. Galarza v. Szalczyk, 745 F.3d 634, 643-45 (3d Cir.

5 2014) (holding that ICE detainer requests cannot be mandatory and create no obligation on the part of

6 state or local officials to take any action); Miranda-Olivares, 2014 WL 1414305, at *9–11 (same);

7 LaCroix, 2017 WL 837477, at *10 (Fla. Cir. Ct. Mar. 3, 2017) (same). “The Federal Government

8 may . . . no[t] command the States’ officers, or those of their political subdivisions, to administer or

9 enforce a federal regulatory program.” Printz, 521 U.S. at 935. Compliance with detainers would

10 demand far more of state and local officials than the background checks at issue in Printz. Whereas the

11 Brady Act provision required no affirmative action by state and local officials beyond making

12 “reasonable efforts” to determine the legality of a handgun sale, compliance with ICE detainer

13 requests would require local personnel to commit significant resources to jail their residents—in their

14 own facilities and at their own cost—on civil immigration grounds at the federal government’s

15 direction. See Declaration of Sheriff Vicki Hennessy in Support of CCSF’s Mot. for Summary

16 Judgment and Declaration of Lieutenant James Quanico in Support of CCSF’s Mot. for Summary

17 Judgment; see also 8 C.F.R. § 287.7(e) (providing that “[n]o detainer issued as a result of a

18 determination made under this chapter . . . shall incur any fiscal obligation on the part of the

19 Department”).

20

But even if the Executive Order did not conscript local officials to serve federal interests, it

21 would still violate the Tenth Amendment. The Tenth Amendment not only prohibits circumstances

22 like that at issue in Printz, where local officials are enlisted into the service of a federal regulatory

23 scheme; it also forbids the federal government from “requir[ing] the States to govern according to

24 Congress’ instructions.” New York, 505 U.S. at 162. Under the Tenth Amendment, the federal

25 government may require states to comply with generally applicable laws, but it may not regulate states

26 “in their sovereign capacity” by compelling them to legislate in a particular manner. Reno v. Condon,

27 528 U.S. 141, 151 (2000). Thus, where the “whole object of [a] law [is] to direct the functioning of the

28 state executive” or the state legislative program, it will intrude on state sovereignty in the very way the

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1 Tenth Amendment aims to prevent. Printz, 521 U.S. at 932; New York, 505 U.S. at 176. The “whole

2 object” of the Executive Order is to direct the functioning of state and local governments. By

3 threatening “enforcement action” of unspecified nature against any “entity . . . which has in effect a

4 statute, policy, or practice that prevents or hinders the enforcement of Federal law,” and by threatening

5 wholesale defunding against entities deemed to be sanctuary jurisdictions, the Enforcement Directive

6 attempts to interfere with local governments’ autonomy to legislate for themselves.

7

The Tenth Amendment prevents the Executive Order from accomplishing this end. San

8 Francisco’s sanctuary city laws lie at the heart of San Francisco’s core governmental interests. See

9 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). The federal

10 government may no more coerce San Francisco to change these policies than it could directly order it

11 to do so. New York, 505 U.S. at 176 (providing that where “an instruction to state governments . . .

12 standing alone, would be beyond the authority of Congress,” it “follows that Congress lacks the

13 power” to coerce States to enact the instruction themselves). Because the Executive Order attempts to

14 do exactly this, it is unconstitutional.

15

D. The AG Memorandum Does Not Narrow the Executive Order.

16

Defendants acknowledge the constitutional limitations discussed above, RJN Exh. Z at 33–34,

17 but rely on the narrowing construction offered in the AG Memorandum to argue that the Executive

18 Order has a dramatically narrower scope at odds with its plain text. See Dkt. Nos. 107, 111. As this

19 Court has already determined, however, the AG Memorandum fails to save the Executive Order.

20

1. The AG Memorandum Is Not Binding Authority About The Executive Order.

21 Contrary to Defendants’ repeated assertions, the AG Memorandum is not conclusive guidance
22 binding on all Executive Branch agencies. Indeed, the AG Memorandum is not binding even on the
23 Attorney General. “[T]he Attorney General could, at any time, revoke the AG Memorandum and issue
24 new guidance. Or the President could replace the Attorney General to revoke it.” Recon. Order at 13.
25 Here, the Attorney General has not disavowed the constitutionality of a broader construction, leaving
26 him—or a future Attorney General—free to embrace a different construction in the future.
27 Further, there is no reason for other agencies to act as if the AG Memorandum is directed at
28

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1 them, when it is addressed only to components within DOJ. As its title states, it is a “Memorandum for

2 All Department Grant-Making Components.” This stands in stark contrast with memoranda that are, in

3 fact, addressed to all Executive Branch agencies. See, e.g., RJN Exh. AA. If the Memorandum were

4 truly intended to “advise executive department heads” in a “formal, conclusive manner [about] the

5 administration’s interpretation of Section 9(a) of the Executive Order,” Defs’Mot. to Dismiss at 7, it

6 would fail at the outset by not being directed to those department heads.

7

Additionally, the AG Memorandum bears none of the traditional hallmarks of a formal legal

8 opinion by the Attorney General. It “is labeled as an ‘implementation’ memorandum, is only two

9 pages long, does not engage in substantive legal analysis, and primarily outlines plans to enforce the

10 order, rather than an opinion on its meaning or scope.” Recon. Order at 11. It was not requested by an

11 executive department head pursuant to 28 U.S.C. § 512, nor issued by the Office of Legal Counsel

12 pursuant to 28 C.F.R. § 0.25. In short, there is nothing on the face of the memo suggesting that it is a

13 formal legal opinion of the Attorney General.

14

Even if the AG Memorandum were a formal legal opinion—which it is not—that would not

15 establish that it is binding or controlling on Executive Branch agencies. Indeed, “the question of

16 whether (and in what sense) the opinions of the Attorney General, and, more recently, the Office of

17 Legal Counsel, are legally binding within the executive branch remains somewhat unsettled.”

18 Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal

19 Counsel, 52 Admin. L. Rev. 1303, 1318 (2000).

20

Nor is the AG Memorandum binding or persuasive authority for this Court. Defendants have

21 acknowledged that “the issue here is not whether this Court is bound by the Attorney General’s

22 determination as to the scope and meaning of the grant eligibility provision, but rather whether other

23 federal agencies are bound by it.” Recon. Reply at 5 n.6. Thus, according to Defendants, “the rules of

24 judicial deference are inapplicable.” Id. This is a wise concession, as courts give deference only to an

25 agency’s “reasonable” interpretation of an executive order it is charged with administering. See

26 Western Watersheds Project v. Abbey, 719 F.3d 1035, 1042–43 (9th Cir. 2013). But here, the Court

27 has already rejected Defendants’ narrow interpretation as unreasonable. PI Order at 14–15; Recon.

28 Order at 7. In sum, even construed in the light most favorable to Defendants, the AG Memorandum

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1 is—as it says—an implementation document within the DOJ. It is not a legal opinion that binds other

2 Executive Branch agencies.

3

2. Even If The AG Memorandum Were Binding, It Would Not Alter The Plain Language Of The Executive Order Or Eliminate Its Coercive Force.

4 Even if the AG Memorandum were binding on all Executive Branch agencies, it would simply
5 constitute a promise to enforce the Executive Order more narrowly than it is written. Yet as the Court
6 recognized, “similar promises are routinely rejected by the courts as illusory and should not impact the
7 analysis here.” Recon. Order at 8 (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
8 770 (1988); United States v. Stevens, 559 U.S. 460, 480 (2010); Doe v. Harris, 772 F.3d 563, 579–80
9 (9th Cir. 2014); United States v. Nosal, 676 F.3d 854, 862 (9th Cir. 2012)). An en banc panel of the
10 Ninth Circuit, for example, rejected a similar attempt to adopt a narrowing construction in order to
11 save an unconstitutional law in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
12 657 F.3d 936, 946–47 (9th Cir. 2011) (en banc). There, the Redondo Beach City Attorney submitted a
13 sworn affidavit stating the City had only applied a challenged ordinance to conduct, not speech, and
14 had no intention of applying it more broadly. The Court rejected this promise, holding that a
15 narrowing construction can save a statute only where the text is “readily susceptible” to such a
16 construction. Id. Similarly, here, the Court has declined to adopt the AG Memorandum’s narrowing
17 construction because the Executive Order’s text is not “readily susceptible” to that construction. PI
18 Order at 14. The text has not changed since the PI Order issued, and the Court’s determination holds
19 true.
20 In a related line of cases, the Supreme Court has held that an agency’s “voluntary self-denial”
21 of powers granted by an unconstitutional law does not save that law. See Whitman v. Am. Trucking
22 Ass’ns, 531 U.S. 457, 472-73 (2001); see also Knox v. Serv. Emps. Int’l Union, 567 U.S. 298, 307
23 (2012) (“The voluntary cessation of challenged conduct does not ordinarily render a case moot
24 because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the
25 case is dismissed.”). In American Trucking Associations, for instance, the D.C. Circuit held that the
26 Clean Air Act made an unconstitutional delegation of authority to the Environmental Protection
27 Agency, but remanded on the theory that this delegation could be fixed by the agency adopting a
28

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1 narrow construction of the Act. 531 U.S. at 472–73. The Supreme Court rejected this approach, stating

2 “[w]e have never suggested that an agency can cure an unlawful delegation of legislative power by

3 adopting in its discretion a limiting construction of the statute.” Id. at 472. It explained, “[w]hether the

4 statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial

5 has no bearing upon the answer.” Id. at 473.

6

The same reasoning applies here. One of the central legal defects of the Executive Order is that

7 it delegates to DOJ and DHS powers that the President himself lacks, and this delegation cannot be

8 fixed by DOJ declining to exercise those powers. The AG Memorandum is not akin to a statutory

9 amendment that might in theory fix constitutional problems or render a case moot. It is, at best, an

10 implementation document that leaves the offending Order in place.

11 III. 12

San Francisco Is Entitled To Declaratory And Injunctive Relief.
A. Defendants Have Created An “Actual Controversy” That Entitles San Francisco To Declaratory Relief On All Counts.

13

This Court may issue declaratory relief “[i]n a case of actual controversy within its

14 jurisdiction.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937); 28 U.S.C. § 2201(a).

15 “Basically, the question in each case is whether the facts alleged, under all the circumstances, show

16 that there is a substantial controversy, between parties having adverse legal interests, of sufficient

17 immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pac.

18 Coal & Oil Co., 312 U.S. 270, 273 (1941). This standard is satisfied here, where an actual controversy

19 exists about both Section 1373 and the Executive Order. See Defs. Answer ¶ 38 (denying that San

20 Francisco complies with Section 1373); Recon. Order at 17–19 (finding San Francisco has

21 demonstrated an actual controversy regarding its compliance with Section 1373); PI Order at 11–35

22 (concluding San Francisco has ripe claims against the Executive Order).

23

B. Defendants’ Ongoing Threats, Together With The Balance Of Equities And Public

Interest, Entitle San Francisco To A Permanent Injunction Of The Executive

24

Order.

25

Just four months ago, this Court granted a preliminary injunction of the Executive Order.

26 Specifically, the Court held that San Francisco and Santa Clara County were

27

currently suffering irreparable harm, not only because the Order has caused and

will cause them constitutional injuries by violating the separation of powers

28

doctrine and depriving them of their Tenth and Fifth Amendment rights, but

CCSF v. President Trump, et al; Case No. 17-00485

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also because the Order has caused budget uncertainty by threatening to deprive

1

the Counties of hundreds of millions of dollars in federal grants that support

core services in their jurisdictions. They have established that they are likely to

2

succeed on the merits of their claims and that the balance of harms and public

interest decisively weigh in favor of an injunction.

3 PI Order at 3-4.

4 Nothing has changed since the Court issued the preliminary injunction,11 and the standard for a
5 permanent injunction is the same except that a plaintiff must show actual success on the merits instead
6 of a likelihood of success.12 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 32 (2008). The
7 Executive Order remains extant, leaving San Francisco to suffer from the same uncertainty and duress
8 that necessitated the preliminary injunction. And San Francisco’s budgetary and constitutional injury
9 continues to be irreparable and ongoing.
10 As detailed in the Whitehouse Declaration, the uncertainty of the Executive Order factored into
11 San Francisco’s decision to set aside a special budget reserve of $10 million, making those funds
12 unavailable for any non-reserve purpose for the entire fiscal year. Whitehouse Decl. ¶ 7. San Francisco
13 continues to be unable to use these monies to fund other budgetary priorities such as housing and
14 social services. San Francisco’s budgetary harm is not purely monetary. It impacts San Francisco’s
15 ability to provide programs and services to its residents. See United States v. North Carolina, 192 F.
16 Supp. 3d 620, 629 (M.D.N.C. 2016) (finding irreparable harm where the unavailability of federal
17 funds was “likely to have an immediate impact on [the state’s] ability to provide critical resources to
18 the public, causing damage that would persist regardless of whether funding [was] subsequently
19 reinstated”).
20 Similarly, San Francisco continues to suffer constitutional harm. Defendants’ statements
21 continue to make clear not only that the Executive Order requires compliance with Section 1373, but
22 also that compliance with Section 1373 means honoring civil immigration detainer requests. See pp.
23 3–4, supra. As long as the Executive Order remains outstanding, San Francisco faces an impossible
24

25

11 Recon. Order at 14.

12 A party seeking a permanent injunction must “must demonstrate: (1) that it has suffered an

26 irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to

compensate for that injury; . . . (3) that, considering the balance of hardships between the plaintiff and

27 defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a

permanent injunction.” Monsanto Co. v. Geertson Seed Farms 561 U.S. 139, 156–57 (2010) (citing

28 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

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1 choice: either comply with detainer requests and hold individuals without probable cause in violation

2 of the Fourth Amendment, or risk violating the terms of the Executive Order. This, coupled with the

3 Executive Order’s other constitutional infirmities—violation of the separation of powers doctrine, the

4 Spending Clause, and the Tenth Amendment—constitutes irreparable harm. See Melendres v. Arpaio,

5 695 F.3d 990, 1002 (9th Cir. 2012) (holding that “the deprivation of constitutional rights

6 unquestionably constitutes irreparable injury”) (internal quotation marks and citation omitted).

7

Lastly, the public interest and the balance of the equities favor the entry of a permanent

8 injunction against all Defendants. As long as the Executive Order remains in place, San Francisco

9 cannot escape Defendants’ threats. San Francisco will continue to face the possibility that its budget

10 could be crippled at any time and that it will be coerced into choosing to violate the Constitution or

11 maintain its federal funds. Since this case was filed, almost eight months ago, Defendants have failed

12 to take any decisive steps to eliminate or mitigate the uncertainty caused by the Executive Order.

13 Defendants have taken no effective action to rescind, modify or amend the Executive Order. Without a

14 permanent injunction, there will be no end to the threat, and the budgetary sword of Damocles will

15 continue to hover ominously over San Francisco’s head.

16

CONCLUSION

17

For the foregoing reasons, San Francisco asks that the Court grant its Motion for Summary

18 Judgment, or, in the Alternative, Partial Summary Judgment, and order declaratory and injunctive

19 relief.

20

21 Dated: August 30, 2017 22 23 24 25 26

DENNIS J. HERRERA City Attorney
By: /s/ Mollie M. Lee MOLLIE M. LEE Deputy City Attorney
Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO

27

28

CCSF v. President Trump, et al; Case No. 17-00485

25

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1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755 TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 MATTHEW S. LEE, State Bar #295247

8 NEHA GUPTA, State Bar #308864 Deputy City Attorneys

9 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

10 San Francisco, California 94102-4602 Telephone: (415) 554-4748

11 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff

13 CITY AND COUNTY OF SAN FRANCISCO

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

18 FRANCISCO,

[PROPOSED] ORDER GRANTING CITY AND

19

Plaintiff,

COUNTY OF SAN FRANCISCO’S MOTION

FOR SUMMARY JUDGMENT, OR IN THE

20

vs.

ALTERNATIVE, PARTIAL SUMMARY

JUDGMENT

21 DONALD J. TRUMP, President of the United

States, UNITED STATES OF AMERICA,

Date: October 4, 2017

22 ELAINE C. DUKE, Acting Secretary of

Time: 2:00 p.m.

United States Department of Homeland

Judge: Honorable William H. Orrick

23 Security, JEFFERSON B. SESSIONS III,

Department: Courtroom 2, 17th Floor

Attorney General of the United States, DOES

24 1-100,

Date Filed: January 31, 2017

25

Defendants.

Trial Date: April 23, 2018

26

27

28

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On August 30, 2017, Plaintiff City and County of San Francisco (“San Francisco”) filed a 1 2 Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (“Motion”) and a

3 hearing on this Motion was held on Wednesday, October 4, 2017, at 2:00 p.m.

4

Having considered the Motion and documents filed therewith, all of the papers on file in

5 this action, and the evidence and arguments presented at the hearing, the Court hereby GRANTS San
6 Francisco’s Motion and enters judgment in its favor as to each of its claims for relief [or, in the
7 alternative, as to the following claims for relief] on the grounds that the undisputed evidence shows
8 9 that:
10 (1) San Francisco Administrative Code Chapters 12H and 12I comply with 8 U.S.C. § 1373.

11 (2) Section 9(a) of Executive Order 13,768 contains a funding restriction that states:

12

[T]he Attorney General and the Secretary, in their discretion and to the extent

13

consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

14

Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to

15

designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.

16 This funding restriction violates the United States Constitution’s separation of powers principles,

17 Spending Clause, and Tenth Amendment.
18 (3) Section 9(a) of Executive Order 13,768 contains an enforcement directive that states: “[t]he
19 Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C.
20
21 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of

22 Federal law.” This enforcement directive violates the Tenth Amendment to the United States

23 Constitution.

24

Having entered judgment on the above, the Court hereby ORDERS the following relief:

25

DECLARATION

26

The Court finds that declaratory relief under 28 U.S.C. § 2201 is appropriate in this case. Now,

27 therefore, it is hereby DECLARED that:
28

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1

00485-WHO

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(1) San Francisco Administrative Code Chapters 12H and 12I comply with 8 U.S.C. § 1373. 1

2 (2) Section 9(a) of Executive Order 13,768 is unconstitutional and invalid.

3

INJUNCTION

4

The Court also finds that each of the necessary elements for issuing a permanent injunction are

5 met. In particular, the Court finds that San Francisco has succeeded on the merits of its claims and that

6 absent an injunction San Francisco would suffer irreparable injury; the balance of equities favor San

7 Francisco; and the requested relief is in the public interest. Now, therefore, it is hereby ORDERED

8
that: 9

10

Defendants Donald J. Trump, President of the United States of America, Elaine C. Duke, in her

11 official capacity as Acting Secretary of the United States Department of Homeland Security, Jefferson

12 B. Sessions, in his official capacity as Attorney General of the United States, the United States of

13 America, and their officers, agents, servants, employees, and attorneys, and any other persons who are
14 in active concert or participation with them, ARE HEREBY RESTRAINED AND ENJOINED from 15
committing, or performing, directly and indirectly, the following act: 16
Enforcing Section 9(a) of Executive Order 13,768, entitled “Enhancing Public Safety in the Interior of 17 18 the United States,” against any jurisdiction in the United States.

19

20 IT IS SO ORDERED.

21 Dated: ____________________ 22 23

______________________________________
WILLIAM H. ORRICK United States District Judge

24

25

26

27

28

CCSF v. President Trump, et al; Case No. 3:17-cv-

2

00485-WHO

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 Case 3:17-cv-00485-WHO Document 172 Filed 09/27/17 Page 1 of 35

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; UNITED STATES OF
AMERICA; ELAINE C. DUKE, Acting

12 Secretary of Homeland Security;

JEFFERSON B. SESSIONS, III,
13 Attorney General of the United States

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 CITY AND COUNTY OF SAN 19 FRANCISCO,

No. 3:17-cv-00485-WHO

20

Plaintiff,

v.

21

22 DONALD J. TRUMP, et al.,

23

Defendants.

24

OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

Date: Time:

October 18, 2017 2:00 p.m.

25

26

27

28

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Case 3:17-cv-00485-WHO Document 172 Filed 09/27/17 Page 2 of 35

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 INTRODUCTION .......................................................................................................................... 1

4 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 4

5

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 4

6

II. Executive Order 13,768 .......................................................................................... 5

7

III. The AG Memorandum ............................................................................................ 5

8

IV. San Francisco’s Ordinances .................................................................................... 7

9 ARGUMENT .................................................................................................................................. 8

10

I. San Francisco Is Not Entitled to a Declaratory Judgment

11

Regarding Compliance with Section 1373.............................................................. 8

12

A. Plaintiff’s Declaratory Claim for Facial Compliance with Section 1373 Is Not Justiciable in This Action................................. 10

13

B. The City’s Ordinances on Communication with Federal

14

Immigration Authorities Conflict with Section 1373 ............................... 13

15

1. Chapter 12I.................................................................................... 13 2. Chapter 12H .................................................................................. 14

16

C. To the Extent Plaintiff Seeks a Ruling on Its Compliance

17

with Section 1373, Factual Development Would be Needed ................... 16

18

II. Plaintiff’s Challenges to Section 9(a) of the Executive Order Are Non-Justiciable............................................................................................... 17

19

III. Plaintiff Is Not Entitled to Judgment Regarding the Grant

20

Eligibility Provision of the Executive Order......................................................... 20

21

A. Plaintiff Is Not Entitled to Judgment Under the Separation of Powers........................................................................... 20

22

B. Plaintiff Is Not Entitled to Judgment in Relation

23

to the Spending Power .............................................................................. 21

24

C. Plaintiff Is Not Entitled to Judgment Under the Tenth Amendment............................................................................... 26

25

IV. Plaintiff Is Not Entitled to Judgment Regarding the “Appropriate

26

Enforcement Action” Provision of the Executive Order....................................... 26

27

V. Any Injunction Herein Should Be Limited to the Plaintiff ................................... 27

28

CONCLUSION ............................................................................................................................. 28 i

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1

TABLE OF AUTHORITIES

2

3
CONSTITUTION
4
U.S. Const. art. I, § 8, cl. 1 ....................................................................................................... 20, 21
5

6 CASES
7
Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................. 18
8
Arizona v. United States, 567 U.S. 387 (2012) .................................................................... 1, 19, 27
9 10 Ashcroft v. Mattis, 431 U.S. 171 (1977) ........................................................................................ 11
11 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 23

12 Barclays Bank PLC v. Franchise Tax Bd. of California, 512 U.S. 298 (1994) ............................. 12

13 Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ...................... 6
14 Calderon v. Ashmus, 523 U.S. 740 (1998)..................................................................................... 11 15
Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995),
16 aff'd sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996) ......................................................... 19

17 City of Chicago v. Sessions, ___ F. Supp. 3d ___, Case No. 17 C 5720,

18

2017 WL 4081821 (Sept. 15, 2017) .................................................................................... 13, 14

19 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ..................................................... 13

20 Colwell v. HHS, 558 F.3d 1112 (9th Cir. 2009)............................................................................. 19

21 Copeland v. Ryan, 852 F.3d 900 (9th Cir. 2017) ........................................................................... 15
22
Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, 2017 WL 1459081
23 (N.D. Cal. Apr. 25, 2017) .............................................................................................. 20, 21, 28

24 El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186 (5th Cir. Sept. 25, 2017) ......................... 25

25 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ........................................................... 26
26
Fonseca v. Fong, 167 Cal. App. 4th 922 (2008)............................................................................ 14
27 Harris Cty. Texas v. MERSCORP Inc., 791 F.3d 545 (5th Cir. 2015) .......................................... 11

28

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1 Hines v. Davidowitz, 312 U.S. 52 (1941)....................................................................................... 27

2 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 23
3
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) ........................................................... 10
4
Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843 (2014).................................. 10
5 6 Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362 (1940) ................................................... 17
7 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................................... 24, 26

8 New York v. United States, 505 U.S. 144 (1992) ..................................................................... 23, 26

9 Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005)..................................................................... 28

10 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)............................................................... 28
11
S. Dakota v. Dole, 483 U.S. 203 (1987).................................................................................. passim
12
Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)............................................ 28
13
14 State of Cal. v. United States, 104 F.3d 1086 (9th Cir. 1997)........................................................ 24

15 Steffel v. Thompson, 415 U.S. 452 (1974) ..................................................................................... 10

16 Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) ............... 10, 11, 17

17 Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995) ............................ 6
18 Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .................................................................... 28 19
United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ..................................................... 19, 27
20
United States v. Salerno, 481 U.S. 739 (1987) ....................................................................... passim
21
22 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ............................................... 19, 27

23 United States v. Texas, 136 S. Ct. 2271 (2016).............................................................................. 28

24 Whitmore v. Arkansas, 495 U.S. 149 (1990). ................................................................................ 18

25 Wilton v. Seven Falls Co., 515 U.S. 277 (1995) .............................................................................. 9 26

27

28

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1 STATUTES

2 28 U.S.C. § 512 ............................................................................................................................ 1, 5
3
8 U.S.C. 1373 .......................................................................................................................... passim
4
8 U.S.C. § 1101 et seq...................................................................................................................... 4
5 6 8 U.S.C. § 1103(a)(1) ....................................................................................................................... 6
7 8 U.S.C. § 1103(g) ........................................................................................................................... 6

8 8 U.S.C. § 1357 ................................................................................................................................ 4

9 8 U.S.C. § 1357(g) ......................................................................................................................... 23
10 8 U.S.C. § 1373 ....................................................................................................................... passim 11
8 U.S.C. § 1644 ................................................................................................................................ 5
12
Pub. L. No. 104-193, Title IV, § 434, 110 Stat. 2275 (1996) .......................................................... 5
13 14 Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996) ............................................. 5
15 CAL. HEALTH & SAFETY § 11369................................................................................................... 14

16 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.1 ........................................................................... 2, 7, 16

17 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.2 ............................................................................ passim

18 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.3 ..................................................................... 7, 8, 16, 17
19 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.4 ..................................................................................... 8
20 S.F., CAL., ADMIN. CODE ch. 12H, § 12I.2 .................................................................................... 13 21
S.F., CAL., ADMIN. CODE ch. 12H, § 12I.3(e) .................................................................... 2, 8, 9, 13
22
S.F., CAL., ADMIN. CODE ch. 12H, § 12I.5(b) ................................................................................ 14
23

24
REGULATIONS
25
28 C.F.R. § 0.5(c)......................................................................................................................... 1, 6
26

27
EXECUTIVE ORDER

28

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1
Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim
2

3

4 COURT RULES

5 Fed. R. Civ. P. 56(a)......................................................................................................................... 4

6 Fed. R. Civ. P. 56(d) ...................................................................................................................... 17 7

8 OTHER AUTHORITIES

9 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim

10 Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan,

11

Acting Comm’r, U.S. Customs and Border Protection, et al.,

Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017)............... 4

12

Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the

13

Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000) ........................................... 6

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

v

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1

INTRODUCTION

2

“The Government of the United States has broad, undoubted power over the subject of

3 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).

4 Consistent with this federal power, Executive Order 13,768 establishes the enforcement of federal

5 immigration law as a priority for the Executive Branch. See Exec. Order No. 13,768, § 2, 82 Fed.

6 Reg. 8,799 (Jan. 30, 2017). Pertinent here, Section 9(a) of the Order directs the Attorney General

7 and the Secretary of Homeland Security (“Secretary”) to exercise their existing authority to

8 “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 . . . are not eligible to

9 receive Federal grants” Id. § 9(a). Section 1373 provides that no government entity or official

10 may “prohibit, or in any way restrict” the sending of information regarding the citizenship or

11 immigration status of any individual to federal immigration authorities. 8 U.S.C. § 1373(a).

12 Section 9(a) of the Executive Order also instructs the Attorney General to exercise his existing

13 authority to take “appropriate enforcement action” against any entity that violates Section 1373 or

14 has a statute or policy that “prevents or hinders the enforcement of Federal law.” Id.

15

The Attorney General, in the exercise of his discretion under Section 9(a) and his overall

16 responsibility to advise executive department heads, see 28 U.S.C. § 512; 28 C.F.R. § 0.5(c), has

17 issued formal guidance regarding the implementation of Section 9(a). See Mem. from Att’y Gen.

18 for All Dep’t Grant-Making Components (May 22, 2017) (Attachment 1 hereto) (hereinafter AG

19 Mem.). Among other things, the AG Memorandum provides (1) that the grant eligibility

20 provision in Section 9(a) applies “solely to federal grants administered by the Department of

21 Justice or the Department of Homeland Security [“DHS”],” (2) that the Department of Justice

22 (“DOJ”) will require jurisdictions applying for certain DOJ-administered grants “to certify their

23 compliance with federal law, including 8 U.S.C. § 1373,” (3) that the certification will be

24 required only where the agency is “statutorily authorized to impose such a condition,” (4) that

25 “[a]ll grantees will receive notice of their obligation to comply with section 1373,” and (5) that

26 only “jurisdiction[s] that fail[] to certify compliance with section 1373 will be ineligible to

27 receive [an] award[].” AG Mem. at 1-2.

28

San Francisco, the plaintiff here, has enacted an ordinance declaring that it is “a City and

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1 County of Refuge.” S.F., CAL., ADMIN. CODE ch. 12H, § 12H.1. The ordinance provides, among

2 other things, that “[n]o department, agency, commission, officer, or employee of the City and

3 County of San Francisco shall use any City funds or resources to assist in the enforcement of

4 Federal immigration law . . . unless such assistance is required by Federal or State statute,

5 regulation, or court decision.” Id. § 12H.2. A second ordinance specifies that San Francisco

6 “[l]aw enforcement officials shall not . . . provide any individual’s personal information to a

7 federal immigration officer, on the basis of an administrative warrant, prior deportation order, or

8 other civil immigration document based solely on alleged violations of the civil provisions of

9 immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e). That ordinance includes no

10 saving clause for compliance with federal law.

11

In its motion for summary judgment, plaintiff seeks a declaration that its ordinances

12 comply with 8 U.S.C. § 1373; a declaration that the grant eligibility provision in Section 9(a) of

13 the Executive Order violates the constitutional Separation of Powers, exceeds the Spending

14 Power, and violates the Tenth Amendment; a declaration that the “appropriate enforcement

15 action” provision in Section 9(a) violates the Tenth Amendment; and an injunction against the

16 implementation of Section 9(a).

17

It is important to understand the narrow scope of this lawsuit. This lawsuit does not

18 concern any specific grant requirement imposed under existing law. Indeed, San Francisco has

19 filed a separate action challenging such requirements with respect to specific grants awarded by

20 the Department of Justice. San Francisco v. Sessions, No. 3:17-cv-04642-WHO (N.D. Cal.). Nor

21 does this lawsuit concern the legality of preexisting authority of the Department of Justice or the

22 Department of Homeland Security to administer grants. Nor does San Francisco challenge the

23 constitutionality of Section 1373. Instead, this lawsuit challenges only the legality of Section 9(a)

24 of the President’s Executive Order, and separately – and inappropriately – seeks a declaratory

25 judgment that San Francisco’s local ordinances are consistent with 8 U.S.C. § 1373.

26

As discussed below, plaintiff’s request for a judgment that its local ordinances are

27 consistent with Section 1373 is not a proper declaratory judgment action. San Francisco

28

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1 essentially asks this Court for an advisory opinion under circumstances where the City has

2 already taken the action that creates legal jeopardy, a form of action that turns the purpose of a

3 declaratory remedy on its head. Moreover, while the Department of Justice has begun efforts to

4 utilize preexisting grant-making authority to impose various conditions on certain grants, and

5 those conditions are subject to challenge in separate litigation, plaintiff has not shown a concrete

6 risk of harm stemming solely from Section 9(a) of the Executive Order. Compliance with Section

7 1373 has been a grant requirement under existing law for certain grants for a substantial period of

8 time, and prior to the issuance to the Executive Order. In sum, the City’s challenge to Section

9 1373 is not justiciable.

10

Alternatively, were this Court to evaluate whether the San Francisco ordinances are

11 consistent, on their face, with Section 1373 – which it should not absent some sort of enforcement

12 action, which has not yet occurred – it would have to conclude that there is a conflict. At least

13 one of the San Francisco information-sharing bans flatly contravenes Section 1373. And while

14 the other expansive restrictions include a saving clause, the reach of and adherence to that clause

15 is not plain. Critically, there has been no enforcement action, and factual development would be

16 needed to determine whether San Francisco implements these provisions in a manner that violates

17 Section 1373.

18

With respect to Section 9(a), that provision and the AG Memorandum make clear that the

19 grant eligibility provision will be applied only where the Attorney General or the Secretary is

20 acting under statutory authority to condition grants on compliance with Section 1373, such that

21 Section 9(a) is entirely consistent with the constitutional Separation of Powers.

22

The AG Memorandum further makes clear that prospective grantees will receive notice of

23 the Section 1373 condition in advance, and that the condition will be applied only to grants

24 administered by the Department of Justice or the Department of Homeland Security, which are,

25 respectively, the primary law enforcement agency of the United States and the agency responsible

26 for the admission and removal of non-citizens. Thus, this grant condition will not violate any of

27 the Supreme Court’s limitations on the Spending Power. See S. Dakota v. Dole, 483 U.S. 203,

28

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1 207-08, 211 (1987). Finally, neither the grant eligibility provision nor the “appropriate

2 enforcement action” provision of Section 9(a) “commandeers” a state or local governments in

3 violation of the Tenth Amendment, as plaintiff’s obligation would arise only because of its

4 voluntary acceptance of grants that included the condition.

5

Thus, the plaintiff is not “entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a),

6 and its motion for summary judgment should be denied.

7

STATUTORY AND ADMINISTRATIVE BACKGROUND

8
I.
9

Broad Executive Discretion in Enforcement of Immigration Law Through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., Congress

10 granted the Executive Branch significant authority to control the entry, movement, and other

11 conduct of foreign nationals in the United States. Under the INA, the Department of Homeland

12 Security, the Department of Justice, and other agencies of the Executive Branch administer and

13 enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise

14 considerable executive discretion to direct enforcement pursuant to federal policy objectives. For

15 example, the Secretary has consistently exercised executive discretion in the enforcement of

16 federal immigration law. See, e.g., Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin

17 McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et al., Enforcement of the

18 Immigration Laws to Serve the National Interest (Feb. 20, 2017).1

19

In emphasizing the federal government’s leading role in immigration enforcement, the

20 INA also envisions involvement from state and local authorities in the enforcement of immigra-

21 tion law. See, e.g., 8 U.S.C. § 1357. One key provision, 8 U.S.C. § 1373, ensures the sharing of

22 information between federal and state actors:

23

Notwithstanding any other provision of Federal, State, or local law, a Federal,

24

State, or local government entity or official may not prohibit, or in any way

25

restrict, any government entity or official from sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or

26

1 This memorandum is available at https://www.dhs.gov/ sites/ default/ files/
27 publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-

28 Interest.pdf.

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1

immigration status, lawful or unlawful, of any individual.

2 Id. § 1373(a); see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996);

3 see also 8 U.S.C. § 1644 (similar provision enacted in Pub. L. No. 104-193, Title IV, § 434, 110

4 Stat. 2275 (1996)).

5 II. Executive Order 13,768

6

The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

7 the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

8 “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

9 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

10 immigration law within the United States, and it instructs certain federal officials to use “all

11 lawful means” to enforce those laws. See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

12

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

13 who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

14 Reg. at 8,800. Section 9 of the Order provides that “[i]t is the policy of the executive branch to

15 ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

16 comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

17

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

18

Security], in their discretion and to the extent consistent with law, shall ensure that

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

19

dictions) are not eligible to receive Federal grants, except as deemed necessary for

law enforcement purposes by the Attorney General or the Secretary. The Secre-

20

tary has the authority to designate, in his discretion and to the extent consistent

21

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373,

22

or which has in effect a statute, policy, or practice that prevents or hinders the

enforcement of Federal law.

23 Id. § 9(a), 82 Fed. Reg. at 8,801.

24 III. The AG Memorandum

25

On May 22, 2017, the Attorney General issued a Memorandum regarding the

26 implementation of Executive Order 13,768. See AG Mem. at 1. The Attorney General has a

27 statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. 512; to

28

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1 represent federal agencies in litigation, id. § 516; and to furnish formal legal opinions to executive

2 agencies, 28 C.F.R. § 0.5(c). Also, although the Secretary principally administers the immigra-

3 tion laws, the INA provides that “the determination and ruling by the Attorney General with

4 respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1); see id. § 1103(g). By

5 longstanding tradition and practice, the Attorney General’s legal opinions are treated as

6 authoritative by the heads of executive agencies. See, e.g., Tenaska Washington Partners II, L.P.

7 v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss, Executive Branch Legal

8 Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20

9 (2000) (“Few . . . dispute the proposition that whether for legal reasons, to promote uniformity

10 and stability in executive branch legal interpretation, or to avoid the personal risk of being subject

11 to the imputation of disregarding the law as officially pronounced, executive branch agencies

12 have treated Attorney General . . . opinions as conclusive and binding since at least the time of

13 Attorney General William Wirt [1817-1829].”) (footnotes and internal quotation marks omitted).

14

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

15 interpretation of Section 9(a) of the Executive Order. The Memorandum specifies that the Order

16 does not “purport to expand the existing statutory or constitutional authority of the Attorney

17 General and the Secretary of Homeland Security in any respect,” but rather instructs those

18 officials to take certain action, “to the extent consistent with the law.” AG Mem. at 2; see Bldg.

19 & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (noting that the

20 President is merely wielding his “supervisory authority over the Executive Branch” where he

21 “directs his subordinates” to take certain action “but only ‘[t]o the extent permitted by law’”).

22 The AG Memorandum further clarifies that the grant eligibility provision in Section 9(a) is

23 limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants requiring the

24 applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as a condition

25 for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify compliance

26 with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the grant eligibility

27 provision. Id. In other words, the provision applies only where an applicant or grant recipient

28

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1 has had the choice either to certify compliance with 8 U.S.C. § 1373 as an express condition of

2 eligibility to participate in a certain grant program, or to refuse to certify compliance and thereby

3 render itself ineligible to participate in the program. The AG Memorandum also makes clear that,

4 with respect to Section 1373 compliance conditions, DOJ and DHS may impose such conditions

5 only pursuant to the exercise of “existing statutory or constitutional authority,” and only where

6 prospective grantees “will receive notice of their obligation to comply with section 1373.” AG

7 Mem. at 2. Lastly, the Attorney General states that, “[a]fter consultation with the Secretary of

8 Homeland Security, [he has] determined that, for purposes of enforcing the Executive Order, the

9 term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8

10 U.S.C. 1373.’” Id.

11 IV. San Francisco’s Ordinances

12

Chapter 12H of the San Francisco Administrative Code “affirm[s] that the City and

13 County of San Francisco is a City and County of Refuge.” S.F., CAL., ADMIN. CODE ch. 12H,

14 § 12H.1. To that end, the Code provides, among other things, that “[n]o department, agency,

15 commission, officer, or employee of the City . . . shall use any City funds or resources to assist in

16 the enforcement of Federal immigration law . . . unless such assistance is required by Federal or

17 State statute, regulation, or court decision.” Id. § 12H.2. The Code then specifies that this

18 “prohibition . . . shall include, but shall not be limited to” four different categories of conduct,

19 among which are “[a]ssisting or cooperating, in one’s official capacity, with any investigation . . .

20 public or clandestine, conducted by the Federal agency charged with enforcement of the Federal

21 immigration law and relating to alleged violations of the civil provisions of the Federal

22 immigration law, except as permitted under Administrative Code Section 12I.3.” Id. § 12H.2(a).

23

To ensure compliance with these prohibitions, the Code requires giving a copy of Chapter

24 12H “to every department, agency and commission of the City” and “inform[ing] all employees

25 . . . of the prohibitions in [the] ordinance, the duty of all . . . employees to comply with the

26 prohibitions . . . and [the fact] that employees who fail to comply with the prohibitions . . . shall

27 be subject to appropriate disciplinary action.” Id. § 12H.3. Chapter 12H also requires giving

28

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1 each employee “a written directive with instructions for implementing the provisions of this

2 Chapter.” Id. Finally, Chapter 12H includes a section on “Enforcement” that requires the City’s

3 Human Rights Commission to review compliance with the “mandates” of the Chapter by

4 “departments, agencies, commissions and employees . . . in particular instances in which there is

5 question of noncompliance or when a complaint alleging noncompliance has been lodged.” Id.

6 § 12H.4.

7

The next chapter of the Administrative Code, Chapter 12I, primarily addresses the

8 detention of individuals by San Francisco law enforcement officials and the City’s handling of

9 federal immigration detainer requests. Chapter 12I provides that San Francisco “[l]aw

10 enforcement officials shall not . . . provide any individual’s personal information to a federal

11 immigration officer, on the basis of an administrative warrant, prior deportation order, or other

12 civil immigration document based solely on alleged violations of the civil provisions of

13 immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e).

14

ARGUMENT

15 I. 16

San Francisco Is Not Entitled to a Declaratory Judgment Regarding Compliance with Section 1373

17

Count One of plaintiff’s Second Amended Complaint contends that the City’s “laws,”

18 especially Chapters 12H and 12I of the Administrative Code, comply with 8 U.S.C. § 1373 (Doc.

19 105 ¶¶ 144-148). Under this claim, plaintiff seeks a declaration “that San Francisco laws comply

20 with Section 1373” (id. at 34). Plaintiff’s motion for summary judgment asserts more broadly

21 that “San Francisco Complies With Section 1373” (Doc. 158 at 8).

22

As an initial matter, this is a highly unusual, and inappropriate, use for a declaratory

23 judgment action, and it is non-justiciable for a variety of reasons. First, a declaratory judgment –

24 which is available to test the legality of a course of conduct prior to its implementation to avoid

25 legal jeopardy – is not appropriate in these circumstances, where San Francisco seeks to test the

26 legality of ordinances that have already been enacted. The jeopardy the City seeks to avoid

27 through a declaration of rights already exists.

28

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1

Second, while San Francisco might face legal jeopardy if its ordinances violate Section

2 1373, it would not be free from legal jeopardy – the relief it seeks – unless its ordinances,

3 together with the City’s policies and conduct in implementing those ordinances, are consistent

4 with Section 1373. A declaration that the ordinances, standing alone, comport with Section 1373

5 – without regard to the City’s other policies and practices – would be an advisory opinion and

6 would not declare the respective rights of the parties so as to protect the plaintiff from legal

7 jeopardy. Third, a statutory cause of action to bring this unusual claim is also lacking, precluding

8 the claim.

9

On the other hand, as the Court is aware, currently before this Court in a separate action is

10 a concrete dispute regarding the implementation of actual Office of Justice Program (“OJP”)

11 grants in which one of the conditions is compliance with Section 1373. San Francisco v.

12 Sessions, No. 3:17-cv-04642-WHO (N.D. Cal.). It is in the context of such a dispute that ques-

13 tions like those presented by the plaintiff should be addressed (or in an enforcement proceeding,

14 should there be a determination by OJP that San Francisco law violates the grant condition), not

15 through the advisory opinion sought here.2

16

If the Court were to ignore these flaws and evaluate San Francisco’s ordinances, it should

17 conclude that there is a conflict between Section 1373 and the City’s ordinances. One ordinance

18 flatly bars law enforcement officials from “provid[ing] any individual’s personal information to a

19 federal immigration officer,” with no exception. S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e).

20 The other ordinance prohibits San Francisco employees from using City “resources,” such as

21 telephones, to communicate with federal authorities. See S.F., CAL., ADMIN. CODE ch. 12H,

22 § 12H.2. While the second ordinance includes a saving clause, the manner of its application is

23 unclear, especially given that recent litigation in federal court identified internal policies

24

25

2 Importantly, to the extent the issues that plaintiff now seeks to litigate may later be

raised in a concrete, as-applied challenge regarding the City’s laws or policies, the Court should

26 exercise its discretion to decline jurisdiction under the Declaratory Judgment Act on that basis.

See Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995) (noting that “district courts possess
27 discretion in determining whether and when to entertain an action under the Declaratory Judg-

28

ment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites”). 9

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1 regarding its implementation that squarely conflicted with Section 1373. See Steinle v. City &

2 Cty. of San Francisco, 230 F. Supp. 3d 994, 1003-04 (N.D. Cal. 2017).

3

Finally, before any judicial ruling could properly conclude that “San Francisco Complies

4 With Section 1373,” as the plaintiff contends (Doc. 158 at 8), the implementation of those

5 ordinances would need to be subjected to inquiry. The record in this action is clearly insufficient

6 to make a ruling regarding whether all of the plaintiff’s policies, as they are actually applied, have

7 the practical effect of restricting the communications contemplated by Section 1373. Plaintiff has

8 not submitted adequate evidence regarding its actual practices in relation to communication with

9 federal immigration authorities, and discovery would be needed to develop such evidence.

10

A. Plaintiff’s Declaratory Claim for Facial Compliance with

11

Section 1373 Is Not Justiciable in This Action

12

“[W]hen determining declaratory judgment jurisdiction” the court should “look to the

13 character of the threatened action.” Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134

14 S. Ct. 843, 848 (2014) (internal quotation marks omitted). Article III “requires that the dispute be

15 definite and concrete, touching the legal relations of parties having adverse legal interests; and

16 that it be real and substantial and admit of specific relief through a decree of a conclusive

17 character, as distinguished from an opinion advising what the law would be upon a hypothetical

18 state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (internal quotation

19 marks omitted). A declaratory judgment “is an alternative to pursuit of the arguably illegal

20 activity.” Steffel v. Thompson, 415 U.S. 452, 480 (1974).

21

First, this is not a proper declaratory judgment action because San Francisco is not seeking

22 consideration of the legality of a possible course of conduct in advance in order to avoid legal

23 jeopardy. Steffel, id. Instead, San Francisco has already enacted the ordinances at issue, and is

24 presumably implementing them in a concrete way, and the City’s legal jeopardy already exists

25 should an enforcement action be brought. But there has been no such action. A declaratory

26 judgment ruling is not appropriate in these circumstances, because it is the enforcement action

27 itself that would make the dispute concrete.

28

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1

Second, while San Francisco might face legal jeopardy if its ordinances violate Section

2 1373, it would not be free from legal jeopardy – the relief it seeks – unless its ordinances, together

3 with the City’s policies and conduct in implementing those ordinances, are consistent with

4 Section 1373. A declaration that the ordinances, standing alone, comport with Section 1373 –

5 without regard to the City’s other policies or practices – would be an advisory opinion and would

6 not declare the respective rights of the parties so as to protect the plaintiff from legal jeopardy.

7 See Calderon v. Ashmus, 523 U.S. 740, 749 (1998) (no jurisdiction where “the present declaratory

8 judgment action would not completely resolve those challenges, but would simply carve out one

9 issue in the dispute for separate adjudication”); Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (per

10 curiam) (dismissing action seeking declaratory judgment that law violated Constitution,

11 explaining that “[f]or a declaratory judgment to issue, there must be a dispute which calls, not for

12 an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon

13 established facts”) (internal quotation marks omitted). On the other hand, the defendants have not

14 requested a declaration that the ordinances violate Section 1373 and the Court should not grant

15 such relief absent an enforcement action brought by the United States, which has also not

16 occurred. This is particularly important in the context of the San Francisco information-sharing

17 ordinances, where a district court very recently identified internal local policies issued under the

18 precursor to the currently operative Chapter 12H that squarely violated Section 1373. See Steinle

19 v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1003-04 (N.D. Cal. 2017) (noting that

20 sheriff’s memorandum “stated that Sheriff’s Department employees ‘shall not provide’ several

21 categories of information to ICE, including ‘citizenship/immigration status of any inmate’”).

22

Plaintiff also does not identify a right of action, in Section 1373, or elsewhere, to seek a

23 declaration that the City’s ordinances comply with this federal statute. A plaintiff does not auto-

24 matically have a right of action to seek declaratory judgment wherever Article III standing exists.

25 See Harris Cty. Texas v. MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015) (“The Counties do

26 not contend that [the governing statute] itself creates a private right of action. Instead, the

27 Counties believe that the Declaratory Judgment Act provides a right to relief because there is an

28

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1 ‘actual controversy.’ This argument is flawed because the Declaratory Judgment Act alone does

2 not create a federal cause of action.”). Here, San Francisco has identified no applicable right of

3 action.

4

In contending that there is a concrete dispute to resolve, plaintiff asserts that

5 “[d]efendants’ statements continue to make clear . . . that compliance with Section 1373 means

6 honoring civil immigration detainer requests,” which the plaintiff does not do (Doc. 158 at 24).

7 Importantly, detainers have two components: first, an information-sharing request, and second, a

8 request to detain an alien beyond the normal release date. While providing the information

9 requested in a detainer may be covered by Section 1373, defendants have repeatedly acknow-

10 ledged that requests to detain under an immigration detainer are voluntary (Doc. 133 at 8), and

11 the statements that plaintiff cites do not equate non-compliance with detention requests and non-

12 compliance with Section 1373 (Doc. 158 at 4). For example, the White House statement to which

13 plaintiff refers quoted Section 1373, then said, “That means, according to Congress, a city that

14 prohibits its officials from providing information to federal immigration authorities – a sanctuary

15 city – is violating the law.” See Pl’s Req. Jud. Notice, Ex. E (Doc. 163-5) (emphasis added).

16 Although the statement went on to say that sanctuary cities also “block their jails from turning

17 over criminal aliens to Federal authorities for deportation,” id., it made clear that violation of

18 Section 1373 is based on “prohibit[ing] officials from providing information to federal

19 immigration authorities,” not being a “sanctuary city.” Other statements upon which Plaintiff

20 relies are “merely precatory” and “express federal policy but lack the force of law.” See Barclays

21 Bank PLC v. Franchise Tax Bd. of California, 512 U.S. 298, 329-30 (1994) (citing “press

22 releases, letters, and amicus briefs”). The 2016 report by the Inspector General of the Department

23 of Justice that plaintiff cites (Doc. 158 at 4) did not yet reach definitive conclusions, but only

24 noted that certain jurisdictions’ policies “may” violate Section 1373 (Doc. 163-6). In any event,

25 the statements on which plaintiff relies relate to whether a given jurisdiction actually violates

26 Section 1373 in practice, not whether the ordinances of San Francisco (or any other jurisdiction)

27 facially violate the statute. In short, since there is no live, concrete controversy arising from

28

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1 Section 9(a) of the Order regarding whether San Francisco’s ordinances comply with Section

2 1373 on their face, any judicial ruling on that subject would constitute a prohibited advisory

3 opinion.

4

B. The City’s Ordinances on Communication with Federal Immigration

5

Authorities Conflict with Section 1373

If this Court were to conclude that it can evaluate San Francisco’s ordinances for
6

consistency with Section 1373, it would have to conclude that Section 1373 and the City’s
7
ordinances are in conflict.3 As described earlier, Section 1373 provides, in part, that a “local
8

government entity or official may not prohibit, or in any way restrict, any government entity or
9

official from sending to, or receiving from, [federal immigration officials] information regarding
10

the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).
11

Two chapters of San Francisco’s Administrative Code violate this prohibition. See generally City
12

of New York v. United States, 179 F.3d 29 (2d Cir. 1999) (upholding constitutionality of Section
13

1373 and detailing its application); City of Chicago v. Sessions, ___ F. Supp. 3d ___, Case No. 17
14

C 5720, 2017 WL 4081821, at *11 (Sept. 15, 2017) (same, explaining that statute “prohibits
15

prohibitions on local officials’ voluntary participation”).
16

1. Chapter 12I
17

Chapter 12I of the San Francisco Administrative Code provides that San Francisco “[l]aw
18

enforcement officials shall not . . . provide any individual’s personal information to a federal
19

immigration officer, on the basis of an administrative warrant, prior deportation order, or other
20

civil immigration document based solely on alleged violations of the civil provisions of
21

immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e). Personal information, in turn, is
22

defined broadly to include “any confidential, identifying information . . . including, but not
23

limited to . . . contact information . . . .” Id. § 12I.2. Nothing in that definition excludes
24

“information regarding . . . immigration status” – that is, information covered by Section 1373.
25

26

3 The United States is not seeking to invalidate San Francisco’s ordinances in this action,

nor is it seeking a declaration that the ordinances are invalid. Instead, the United States contends,
27 as explained above, that a decision on the conflict in this action would constitute an

28 impermissible advisory opinion.

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1

Further, Section 12I.5 imposes a semi-annual reporting requirement on any sharing of

2 information, requiring “a description of any communications” made to federal immigration

3 authorities. Id. § 12I.5(b). That requirement compounds the impact of the restriction on

4 communication by discouraging local officers from sharing immigration-status information with

5 federal authorities. Because there is no saving clause, and because “personal information”’ is

6 defined so broadly, a San Francisco officer would risk disciplinary action any time he or she

7 shared information regarding immigration status, rendering the ordinance in square violation of

8 Section 1373. See City of Chicago, 2017 WL 4081821, at *12 (“[T]he Court finds that Congress

9 acts constitutionally when it determines that localities may not prevent local officers from

10 voluntarily cooperating with a federal program or discipline them for doing so.”).

11

2. Chapter 12H

12

Chapter 12H of the Administrative Code prohibits San Francisco employees from using

13 “any City . . . resources to assist in the enforcement of Federal immigration law.” See S.F., CAL.,

14 ADMIN. CODE ch. 12H, § 12H.2. “[S]ending . . . information regarding . . . citizenship or

15 immigration status” to federal immigration authorities under Section 1373 necessarily constitutes

16 “assist[ing] in the enforcement of Federal immigration law,” which is prohibited by Chapter 12H.

17 Indeed, the California Court of Appeal has observed that a state statute that requires arresting

18 officers to inform federal immigration officials when a person arrested for certain criminal

19 violations “may not be” a citizen “was specifically designed to provide state assistance in the

20 enforcement of federal immigration laws.” Fonseca v. Fong, 167 Cal. App. 4th 922, 932 (2008)

21 (emphasis added); see CAL. HEALTH & SAFETY § 11369.4

22

Additionally, forbidding the use of City “resources” – such as telephones and Internet

23

4 Plaintiff argues that “Chapter 12H’s general prohibition against ‘using City funds or

24

resources to assist in the enforcement of Federal immigration law’ does not prohibit employees from sharing immigration information with ICE” because “[t]he more specific language about

25 ‘release status’ and other ‘personal information’ controls over this general language” (Doc. 158 at

11 n.6). But the ordinance prohibits using City resources “to assist in the enforcement of Federal

26 immigration law or to gather or disseminate information regarding release status of individuals or

any other such personal information” (emphasis added). Thus, the language about “assist[ing] in
27 the enforcement of Federal immigration law” is not modified by the language about gathering or

28

disseminating “release status” and other “personal information,” but operates independently. 14

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1 access – to communicate with federal immigration authorities violates Section 1373’s

2 proscription against “restrict[ing]” the transmission of immigration-status information “in any

3 way.” 8 U.S.C. § 1373(a). One definition of the verb “restrict” is “to place under restrictions as

4 to use or distribution,” and “restriction” is defined as “a limitation on the use or enjoyment of

5 property or a facility.” See Restrict Definition, Merriam-Webster.com, https://www.merriam-

6 webster.com/ dictionary/ restrict (last visited Sept. 27, 2017); Restriction Definition,

7 https://www.merriam-webster.com/ dictionary/ restriction (last visited Sept. 27, 2017). Thus,

8 limiting the means by which an employee can transmit information to federal immigration

9 authorities “restrict[s]” such transmission. Moreover, prohibiting the use of telephones would not

10 only prevent an employee from using her office telephone to call federal authorities to report on

11 an individual’s immigration status, but would, presumably, also require the employee to hang up

12 if a federal official called to ask about an individual’s status. That is obviously a restriction on

13 the transmission of information.

14

Plaintiff points to the saving clause in Chapter 12H (“unless such assistance is required by

15 Federal or State statute, regulation, or court decision”), but that clause does not permit the Court

16 to determine at the summary judgment stage that the ordinance is consistent with Section 1373.

17 First, the clause is ambiguous. The categories listed in Chapter 12H include their own

18 exceptions, but do not reiterate the saving clause, thus making it unclear whether those subparts

19 are subject to the saving clause.5 Making matters even more confusing, one listed category does

20 reiterate the saving clause, suggesting that the other subparts intentionally do not include it. See

21 id. § 2.H.2(d) (prohibiting the collection of information except as “required by Federal . . . statute,

22 regulation, or court decision”). See Copeland v. Ryan, 852 F.3d 900, 907 (9th Cir. 2017) (“Under

23 the maxim of expressio unius est exclusio alterius, there is a presumption that when a statute

24 designates certain persons, things, or manners of operation, all omissions should be understood as

25
5 See S.F., CAL., ADMIN. CODE ch. 12H, § 12H.2 (“the prohibition . . . shall include, but shall

26 not be limited to” the listed subparts); id. § 12.H.2(a) (prohibition includes “[a]ssisting or

cooperating . . . with any investigation . . . except as permitted under [another code section]”); id.
27 § 12.H.2(c) (prohibition includes “disseminating information . . . regarding . . . any other such

28

personal information . . . except as permitted under [another code section]”). 15

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1 exclusions.”) (internal quotation marks omitted).

2

Second, the saving clause is entirely overshadowed by the rest of Chapter 12H. The first

3 section of Chapter 12H categorically “affirm[s] that the City and County of San Francisco is a

4 City and County of Refuge.” S.F., CAL., ADMIN. CODE ch. 12H, § 12H.1. The ordinance

5 prohibits using City funds or resources to “assist in the enforcement of Federal immigration law,”

6 and provides that the prohibition “shall include, but shall not be limited to” four expressly

7 described categories of conduct, including “[a]ssisting or cooperating, in one’s official capacity,

8 with any investigation” conducted by federal immigration authorities. Id. § 12H.2. The

9 ordinance also expressly requires “inform[ing] all employees . . . of the prohibitions in [the]

10 ordinance, the duty of all . . . employees to comply with the prohibitions . . . and [the fact] that

11 employees who fail to comply with the prohibitions . . . shall be subject to appropriate

12 disciplinary action.” Id. § 12H.3. Chapter 12H does not, however, require informing employees

13 that they may violate these stringent “prohibitions” if “required” by federal law. Thus, if the

14 City’s intent were to comply with Section 1373, it would be odd for it to have enacted these many

15 provisions that violate it.6

16

Without discovery into how the City actually implements Chapter 12H and its purported

17 saving clause, it is simply impossible to determine whether the chapter complies with Section

18 1373. Summary judgment is thus wholly inappropriate.

19

C. To the Extent Plaintiff Seeks a Ruling on Its Compliance with

20

Section 1373, Factual Development Would be Needed

21

As noted earlier, plaintiff’s Second Amended Complaint contends that the City’s “laws”

22 comply with Section 1373, and its summary judgment motion asserts more broadly that “San

23 Francisco Complies With Section 1373” (Doc. 105 ¶¶ 144-148; Doc. 158 at 8). Both of these

24 inquiries call for an evaluation not only of the two San Francisco ordinances, but also of the

25

6 Nor does the January 19, 2017, memorandum from the City’s Human Resources

Director to City employees keep Chapter 12H from violating Section 1373 (Doc. 163-22). The

26 memorandum was a “Reminder about [Employees’] Sanctuary City Obligations,” and only

quoted Section 1373 without comment rather than, as the plaintiff claims, “explicitly advis[ing]
27 all employees about their ability to share information about an individual’s citizenship or

28

immigration status” with federal officials (Doc. 158 at 11). 16

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1 policies and practices implementing those ordinances. See Nashville, C. & St. L. R. Co. v.

2 Browning, 310 U.S. 362, 369 (1940) (“It would be a narrow conception of jurisprudence to

3 confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the

4 gloss which life has written upon it. Settled state practice . . . can establish what is state law.”).

5 Importantly, Section 1373 speaks not only to local ordinances, but also to any restriction on

6 information-sharing by any “entity or official.” But the record in this action is inadequate to

7 make any such declarative ruling regarding San Francisco law. Several factual issues would be

8 presented, including San Francisco’s internal policies in implementing its ordinances and what

9 the City tells its employees regarding federal law. For example, Chapter 12H of the Adminis-

10 trative Code requires “[e]ach appointing officer of the City and County of San Francisco [to]

11 inform all employees under her or his jurisdiction of the prohibitions in [Chapter 12H], the duty

12 of all of her or his employees to comply with [those] prohibitions . . . and [the fact] that

13 employees who fail to comply with the prohibitions of the ordinance shall be subject to

14 appropriate disciplinary action.” The content of those warnings is not in the record. S.F., CAL.,

15 ADMIN. CODE ch. 12H, § 12H.3. Also, “[e]ach City and County employee [must] be given a

16 written directive with instructions for implementing the provisions of [Chapter 12H],” and no

17 such written directive in the record. Id. Further, as noted earlier, other litigation in this Court

18 recently identified actual policies that squarely conflict with Section 1373. See Steinle, 230

19 F. Supp. 3d at 1003-04. Moreover, the plaintiff itself seeks to rely on an internal directive

20 separate from its ordinances (Doc. 158 at 11-12). The City’s policies and procedures would have

21 to be carefully reviewed before the Court could enter a declaration that San Francisco is in

22 compliance with Section 1373. Thus, before issuing a declaratory ruling addressing the City’s

23 actual compliance or non-compliance with Section 1373, factual development – including

24 discovery – would be needed. See Fed. R. Civ. P. 56(d).

25 II. 26
27

Plaintiff’s Challenges to Section 9(a) of the Executive Order Are Non-Justiciable
Plaintiff’s challenges to Section 9(a) of the Executive Order in Counts Two and Three of

28

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1 the Second Amended Complaint are non-justiciable under principles of standing.

2

Count Two of plaintiff’s Second Amended Complaint alleges that the grant eligibility

3 provision in Section 9(a) violates the Tenth Amendment, the Separation of Powers, and the

4 Spending Clause (Doc. 105 ¶¶ 149-153). San Francisco has not established a concrete risk of

5 losing any funds under the grant eligibility provision, other than any funds they might lose by

6 refusing to comply with otherwise applicable laws, given the Attorney General’s explanation that

7 this provision does not extend beyond existing law governing grants. The City alleges budgetary

8 “uncertainty” (Doc. 158 at 24), but fails to acknowledge that the Attorney General’s Memoran-

9 dum of May 22, 2017, eliminates that uncertainty. The Memorandum provides (1) that the grant

10 eligibility provision applies “solely to federal grants administered by the Department of Justice or

11 the Department of Homeland Security [“DHS”],” (2) that the Department of Justice (“DOJ”) will

12 require jurisdictions applying for certain DOJ-administered grants “to certify their compliance

13 with federal law, including 8 U.S.C. § 1373,” and (3) that only “jurisdiction[s] that fail[] to certify

14 compliance with section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2.

15 Although plaintiff argues that the AG Memorandum is “at odds” with the “plain text” of the

16 Executive Order (Doc. 158 at 20), every essential element of the Memorandum is, in fact,

17 reflected in the Order, which instructs the Attorney General and the Secretary to “ensure that

18 jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

19 eligible to receive Federal grants,” and to impose compliance with Section 1373 as a grant

20 condition “to the extent consistent with law.” Exec. Order No. 13,768, § 9(a). Thus, compliance

21 with Section 1373 can be imposed as a grant condition only where there is independent authority

22 to do so.

23

Even under the rationale of this Court’s Order denying defendants’ motion for

24 reconsideration, plaintiff cannot establish the “concrete” injury needed for standing and the

25 “concrete” impact needed for ripeness. See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990);

26 Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). The Court disagreed with defendants’

27 contention that the AG Memorandum is a binding legal opinion, but held that the Memorandum

28

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1 sets forth a “plan” for implementation of the Executive Order – “a plan to apply section 9(a) only

2 to DOJ and DHS grants” (Doc. 146 at 10). More than four months have now passed since

3 promulgation of the AG Memorandum, which remains the only Federal Government statement

4 regarding implementation of the grant eligibility provision. Neither the President nor the

5 Secretary has indicated any disagreement with the Attorney General’s “plan” – or, in defendants’

6 view, the Attorney General’s legal opinion – and there is no suggestion that the grant eligibility

7 provision might be implemented in any other way. “The burden of establishing ripeness and

8 standing rests on the party asserting the claim.” Colwell v. HHS, 558 F.3d 1112, 1121 (9th Cir.

9 2009). Under these circumstances, San Francisco has not shown that it will be injured by Section

10 9(a) of the Executive Order.

11

Count Three of the Second Amended Complaint alleges that the Tenth Amendment is

12 violated by the provision in Section 9(a) that instructs the Attorney General to “take appropriate

13 enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute,

14 policy, or practice that prevents or hinders the enforcement of Federal law.” Plaintiff’s claim to

15 standing a here is equally tenuous for a simple reason: There is always a possibility that the

16 Federal Government may sue a State or local government alleging that the defendant’s laws or

17 policies are constitutionally preempted. See Arizona v. United States, 567 U.S. 387 (2012);

18 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691

19 F.3d 1269 (11th Cir. 2012). This authority exists entirely independent of the Executive Order,

20 and invalidating the order will not alter or alleviate that risk. Id. Further, if such action were to

21 occur, San Francisco would have an opportunity at that time to challenge its propriety and

22 merits.7

23

24

7 Plaintiff’s challenges are non-justiciable for the additional reason that the Order is only

an internal directive to certain Executive Branch officials and does not directly affect the plaintiff.

25 See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 (N.D. Cal. May 19, 1995)
(“President Bush issued Executive Order 12,711 on the authority of his general constitutional
26 powers to direct the exercise of powers statutorily delegated to executive branch officials. Such

an executive order implementing policy as a product of executive authority rather than as a
27 consequence of congressional lawmaking does not have the full force of law.”) (citation omitted),

28

aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996). 19

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1 III. Plaintiff Is Not Entitled to Judgment Regarding the Grant

2

Eligibility Provision of the Executive Order

As noted earlier, Count Two of plaintiff’s Second Amended Complaint alleges that the
3

grant eligibility provision in Section 9(a) of the Executive Order violates the constitutional
4

Separation of Powers, the Spending Clause, and the Tenth Amendment. Assuming this claim
5

were justiciable, this provision of the Order is consistent with all of those constitutional
6

provisions, especially as elucidated by the AG Memorandum.
7

Plaintiff’s claims regarding the grant eligibility provision are all the more difficult to
8

sustain because these are facial challenges to an Executive Order. The Supreme Court has held
9

that a facial challenge is “the most difficult challenge to mount successfully.” United States v.
10

Salerno, 481 U.S. 739, 745 (1987). In this context, “the challenger must establish that no set of
11

circumstances exists under which the [challenged enactment] would be valid.” Id. As further
12

discussed below, San Francisco has failed to establish that, even if Section 9 of the Executive
13

Order had the force of law (which it does not, as it is only an internal executive directive), it
14

would be invalid under all circumstances.
15

16

A. Plaintiff Is Not Entitled to Judgment Under the Separation of Powers

Count Two alleges that the grant eligibility provision violates the Separation of Powers by
17

“[e]xercising Spending Power that the Constitution grants to Congress” (Doc. 105 ¶ 153). Article
18

I of the Constitution confers on Congress the authority to “lay and collect Taxes, Duties, Imposts
19

and Excises, to pay the Debts and provide for the common Defence and general Welfare of the
20

United States.” U.S. Const. Art. I, § 8, cl. 1. As this Court has said, Congress may, “[i]ncident
21

to” its spending power, “attach conditions on the receipt of federal funds,” Cty. of Santa Clara v.
22

Trump, ___ F. Supp. 3d ___, 2017 WL 1459081, at *21 (N.D. Cal. Apr. 25, 2017) (quoting Dole,
23

483 U.S. at 206), and “Congress can delegate some discretion to the President to decide how to
24

spend appropriated funds” so long as “any delegation and discretion is cabined by [relevant]
25

constitutional boundaries.” 2017 WL 1459081, at *21.
26

Especially as elucidated by the AG Memorandum, the grant eligibility provision is
27

consistent with this division of constitutional responsibilities. The Executive Order requires the

28

20

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1 Attorney General and Secretary to condition grant eligibility on compliance with 8 U.S.C. § 1373

2 “to the extent consistent with law.” The AG Memorandum makes clear that the Order does not

3 “purport to expand the existing statutory or constitutional authority of the Attorney General and

4 the Secretary . . . in any respect” and “does not call for the imposition of grant conditions that

5 would violate any applicable constitutional or statutory limitation.” AG Mem. at 1-2. Even more

6 specifically, the Memorandum confirms that compliance with Section 1373 will be imposed as a

7 condition of grant eligibility only where the agency “is statutorily authorized to impose such a

8 condition.” Id.

9

Authority to impose at least some conditions is inherent in the statutory authority to

10 administer a grant program. Moreover, beyond that inherent authority, Congress has frequently

11 authorized agencies administering certain grant programs, in a variety of ways, to impose

12 discretionary conditions on the receipt of funds. Pursuant to such authorizations, for example,

13 DOJ has determined to condition eligibility for participation in three DOJ-administered programs

14 on the applicant’s certification of compliance with Section 1373. See generally Tr. of Oral Arg.

15 at 35:4-6, City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017)

16 (identifying the three programs); 2017 WL 1459081, at *4 (same).

17

Further, as noted above, a party challenging the facial constitutionality of an Executive

18 Order must establish that the Order would be unconstitutional in all its applications. See Salerno,

19 481 U.S. at 745. That standard is necessarily impossible to meet in relation to plaintiff’s

20 Separation of Powers claim, since Congress frequently authorizes the Executive to impose

21 discretionary conditions on the receipt of federal grants.

22

B. Plaintiff Is Not Entitled to Judgment in Relation to the Spending Power

23

Plaintiff’s Count Two also alleges that the grant eligibility provision exceeds the federal

24 power under the Spending Clause (Doc. 105 ¶ 153). This Clause provides that Congress may

25 “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the

26 common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As the

27 Supreme Court has held, “Congress may attach conditions on the receipt of federal funds, and has

28

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1 repeatedly employed the power to further broad policy objectives by conditioning receipt of

2 federal moneys upon compliance by the recipient with federal statutory and administrative

3 directives.” S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation marks omitted).

4

The Court in Dole described certain limitations or potential limitations on the spending

5 power. Most basically, “the exercise of the spending power must be in pursuit of ‘the general

6 welfare’” – as stated in the Spending Clause itself, id. at 207 – and conditions on the receipt of

7 federal funds must be stated “unambiguously” so that recipients can “exercise their choice

8 knowingly, cognizant of the consequences of their participation.” Id. Additionally, the Court

9 observed in Dole, “our cases have suggested (without significant elaboration) that conditions on

10 federal grants might be illegitimate if they are unrelated to the federal interest in particular

11 national projects or programs,” and that “in some circumstances the financial inducement offered

12 by Congress might be so coercive as to pass the point at which pressure turns into compulsion.”

13 Id. at 207-08, 211 (internal quotation marks omitted). And finally, the Court said that “other

14 constitutional provisions may provide an independent bar to the conditional grant of federal

15 funds.” Id. at 207-08. Especially in light of the AG Memorandum, the grant eligibility provision

16 is fully consistent with these principles.

17

Plaintiff argues, first, that the grant eligibility provision is ambiguous and not “clearly

18 stated in advance” (Doc. 158 at 13-14). As described above, however, the AG Memorandum

19 makes clear that the provision will be implemented by “require[ing] jurisdictions applying for

20 certain [DOJ] grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a

21 condition for receiving an award.” AG Mem. at 2. Thus, “[a]ll grantees will receive notice of

22 their obligation to comply with section 1373” ahead of time, and the grant eligibility provision

23 will be applied to “[a]ny jurisdiction that fails to certify compliance.” Id. Necessarily, therefore,

24 by reviewing the applicable grant program solicitations and award documents presented to them

25 for acceptance or refusal, potential grantees will be able to “exercise their choice knowingly,

26 cognizant of the consequences of their participation” in grant programs that include this

27 condition. Dole, 483 U.S. at 207. The plaintiff cannot show that the grant eligibility provision

28

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1 will fail this aspect of Dole in all its applications, as necessary in this facial challenge. See

2 Salerno, 481 U.S. at 745.

3

Next, plaintiff argues that the grant eligibility provision imposes immigration-related

4 conditions in programs that “have no relationship to immigration enforcement” (Doc. 158 at 15).

5 As the Court of Appeals has observed, however, this aspect of Dole suggests only a “possible

6 ground” for invalidating an enactment, and does not impose an “exacting standard”:

7

The Supreme Court has suggested that federal grants conditioned on compliance

8

with federal directives might be illegitimate if the conditions share no relationship

to the federal interest in particular national projects or programs. This possible

9

ground for invalidating a Spending Clause statute, which only suggests that the

legislation might be illegitimate without demonstrating a nexus between the

10

conditions and a specified national interest, is a far cry from imposing an exacting

11

standard for relatedness.

Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).
12

Thus, conditions on federal funding must only “bear some relationship to the purpose of the
13

federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167
14

(1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir.
15

2004) (noting that Supreme Court has never “overturned Spending Clause legislation on
16

relatedness grounds”).
17

Especially as implemented by the AG Memorandum, the grant eligibility provision easily
18

meets this standard. The provision will be applied only to grants administered by DOJ and DHS
19

– that is, the primary law enforcement agency of the United States and the agency responsible for
20

the admission and removal of non-citizens. AG Mem. at 1. DHS is the very agency whose
21

communication with state and local government officials is protected by Section 1373.
22

Moreover, the provision will be applied only to “certain . . . grants” as to which the agency “is
23

statutorily authorized to impose such a condition.” Id. at 2. And federal law clearly favors state-
24

federal cooperation on immigration matters. See 8 U.S.C. § 1357(g). Plaintiff continues to argue
25

that the grant eligibility provision threatens funds that “provide critical benefits and services to
26

some of San Francisco’s most needy residents through programs such as Medicare, Medicaid,
27

Temporary Assistance to Needy Families, and Supplemental Nutrition Assistance Programs”

28

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1 (Doc. 158 at 15). But the AG Memorandum has eliminated any possibility that this provision

2 could be applied in relation to any of those categories of federal funding.

3

Plaintiff also argues that the grant eligibility provision will lead to the imposition of

4 conditions that are “unduly coercive” in relation to the City’s overall budget (Doc. 158 at 16). As

5 the Court of Appeals has observed, however, the Supreme Court in Dole concluded that it would

6 find a violation of this potential limitation, “if ever, [only] in the most extraordinary

7 circumstances.” State of Cal. v. United States, 104 F.3d 1086, 1092 (9th Cir. 1997) (citing Dole,

8 483 U.S. at 210-11). Thus, for example, the Court in Dole found no constitutional violation

9 where a State risked losing 5% of its highway funds for refusing to implement a federal minimum

10 drinking age. Dole, 483 U.S. at 211. Conversely, the Court held more recently that Congress

11 violated anti-coercion principles by subjecting States to a risk of losing “all federal Medicaid

12 funding,” which constituted “over 10 percent of a State’s overall budget,” if they declined to

13 adopt certain Medicaid expansion actions. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

14 519, 542 (2012) (hereinafter NFIB). In that case, “the sheer size of this federal spending program

15 in relation to state expenditures” rendered the condition coercive. Id. at 683 (Scalia, J.,

16 dissenting). Courts should not conclude, however, that an enactment is unconstitutional on this

17 ground “unless the coercive nature of an offer is unmistakably clear.” Id. at 681.

18

Under this precedent, plaintiff’s “coerciveness” claim must fail. As noted already, the

19 grant eligibility provision “will be applied solely to [certain] federal grants administered by the

20 [DOJ] or [DHS], and not to other sources of federal funding.” AG Mem. at 1. Moreover, DOJ

21 has so far identified only three programs whose eligibility will be conditioned on compliance with

22 Section 1373. See Tr. of Oral Arg. at 35:2-9. Plaintiff’s complaint alleges that it receives funds

23 under one of those programs, but does not allege the amount of funding involved (Doc. 105 ¶ 53).

24 In these circumstances, San Francisco has fallen far short of stating a viable claim that the

25 “coercive nature” of the grant eligibility provision is “unmistakably clear.” See NFIB, 567 U.S. at

26 681 (Scalia, J., dissenting).

27

Lastly, plaintiff argues that the grant eligibility provision exceeds the spending power by

28

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1 requiring the City to “engage in unconstitutional conduct” (Doc. 158 at 17). The Court in Dole

2 emphasized the narrowness of this limitation on the spending power, noting that “the ‘indepen-

3 dent constitutional bar’ limitation . . . is not . . . a prohibition on the indirect achievement of

4 objectives which Congress is not empowered to achieve directly.” 483 U.S. at 210. Rather, the

5 Court said, this limitation “stands for the unexceptionable proposition that the power may not be

6 used to induce the States to engage in activities that would themselves be unconstitutional. Thus,

7 for example, a grant of federal funds conditioned on invidiously discriminatory state action or the

8 infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’

9 broad spending power.” Id. at 210-11.

10

The grant eligibility provision does not “induce” San Francisco to violate any such

11 constitutional prohibition. As stated in the AG Memorandum, that provision merely requires

12 prospective grantees to certify compliance with 8 U.S.C. § 1373, which proscribes prohibiting or

13 restricting the sharing of information with federal immigration authorities. See AG Mem. at 2.

14 That is not, however, the kind of “independent [constitutional] bar to the conditional grant of

15 federal funds” that the Supreme Court contemplated in Dole. 483 U.S. at 207-08. Plaintiff

16 asserts that this provision will require it to comply with federal immigration detainer requests in

17 violation of the Fourth Amendment (Doc. 158 at 17), but the AG Memorandum says nothing

18 about such requests, and, in any event, cooperating with them is fully consistent with the Fourth

19 Amendment. See El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186, *2 (5th Cir. Sept. 25,

20 2017) (staying injunction of state law requiring cooperation with federal detainer requests and

21 holding that State would likely succeed on its argument that mandatory cooperation with such

22 requests does not violate Fourth Amendment). Moreover, the AG Memorandum states

23 affirmatively that the provision “does not call for the imposition of grant conditions that would

24 violate any applicable constitutional or statutory limitation.” AG Mem. at 1-2. Plaintiff cannot

25 show that this provision will require the City to “engage in unconstitutional conduct” in every

26 application. Cf. Salerno, 481 U.S. at 745.8

27

8 Plaintiff also argues that the grant eligibility provision necessarily does not promote the

28

“general welfare” as required by Dole, 483 U.S. at 27, because only Congress – not the President 25

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1
C. Plaintiff Is Not Entitled to Judgment Under the Tenth Amendment
2
Further, plaintiff’s Count Two also alleges that the grant eligibility provision violates the

3
Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the

4
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

5
people.” San Francisco argues that the grant eligibility provision violates this principle by

6
“commandeering local officials to administer federal immigration law” (Doc. 158 at 18).

7
Although “[t]he Federal Government may not compel the States to enact or administer a

8
federal regulatory program” or to “act on the Federal Government’s behalf,” N.Y. v. United

9
States, 505 U.S. 144, 188 (1992); NFIB, 567 U.S. at 620, the grant eligibility provision does not

10
violate this principle. As noted already, this provision will be implemented by requiring

11
applicants for certain awards to “certify their compliance with federal law, including 8 U.S.C.

12
§ 1373, as a condition for receiving an award. See AG Mem. at 2. And that condition will be

13
imposed only where authorized by existing legal authority and only where potential recipients

14
receive “notice of their obligation.” Id. Thus, where, as here, plaintiff’s obligation would arise

15
only because of its voluntary acceptance of grants that included the condition, the Federal

16
Government has not commandeered the City, because the City may decline to apply for the

17
specific DOJ or DHS grants to which this condition is attached. See Envtl. Def. Ctr., Inc. v. EPA,

18
344 F.3d 832, 847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal

19
regulatory program does not offend the Constitution’s guarantees of federalism, the fact that the

20
alternative is difficult, expensive or otherwise unappealing is insufficient to establish a Tenth

21
Amendment violation.”) (internal quotation marks omitted).

22

23 IV.

Plaintiff Is Not Entitled to Judgment Regarding the “Appropriate Enforcement Action” Provision of the Executive Order

24

Count Three in plaintiff’s Second Amended Complaint alleges that the Tenth Amendment

25 is violated by the last sentence of Section 9(a), which instructs the Attorney General to “take

26

– can determine whether spending promotes the general welfare (Doc. 158 at 17). Even assuming
27 that assertion is correct, it does not establish a constitutional violation because the provision will

28

be applied only where statutorily authorized by Congress. 26

Defs’ Opp. Summ. Judgment

No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 172 Filed 09/27/17 Page 33 of 35

1 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

2 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

3 Plaintiff alleges that this provision “commandeers state and local governments” because the

4 Federal Government has allegedly “taken the position that a state or local jurisdiction that fails to

5 affirmatively assist federal immigration officials – by, for example, refusing to comply with a

6 detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations –

7 hinders the enforcement of federal law and violates Section 1373” (Doc. 105 ¶¶ 156-157).

8

In this facial challenge, however, plaintiff must show that the “appropriate enforcement

9 action” provision would violate the Tenth Amendment in all of its applications. See Salerno, 481

10 U.S. at 745. San Francisco does not – and could not – argue that there are never situations where

11 the Federal Government may appropriately take action against a state or local government entity

12 whose “statute, policy, or practice . . . prevents or hinders the enforcement of Federal law.” For

13 example, the United States, represented by the Attorney General, may bring a judicial action

14 against such an entity to enjoin a statute or practice that is preempted by federal immigration law.

15 See, e.g., Arizona v. United States, 567 U.S. 387 (2012); United States v. South Carolina, 720

16 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012). Indeed, one

17 of the tests for federal preemption is whether the state or local enactment “stands as an obstacle to

18 the accomplishment and execution of the full purposes and objectives of Congress,” Arizona, 567

19 U.S. at 399 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) – which is essentially another

20 way of asking whether an enactment “prevents or hinders the enforcement of Federal law.” If

21 such a lawsuit were ever to overreach the bounds of constitutional preemption, the City (or any

22 other defendant entity) could oppose the relief sought at that time on an as-applied basis.

23 V. Any Injunction Herein Should Be Limited to the Plaintiff

24

Even if the Court were to conclude that plaintiff has satisfied the requirements for

25 summary judgment, the Court should not enter a nationwide injunction herein – assuming that is

26 what the City seeks. “[A]n injunction must be narrowly tailored to affect only those persons over

27 which [the court] has power, and to remedy only the specific harms shown by the plaintiffs, rather

28

27

Defs’ Opp. Summ. Judgment

No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 172 Filed 09/27/17 Page 34 of 35

1 than to enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117

2 (9th Cir. 2004) (internal quotation marks omitted). Thus, courts routinely deny requests for

3 nationwide injunctive relief. See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th

4 Cir. 2012) (affirming district court’s refusal to grant nationwide relief).9

5

In support of its request for a nationwide injunction, plaintiff’s preliminary injunction

6 motion cited Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015), where the court affirmed a

7 nationwide injunction against programs allowing certain non-citizens to remain in the United

8 States (Doc. 21 at 8). The City fails to acknowledge, however, that it vigorously objected to the

9 nationwide injunction in that case. In an amicus brief filed before the Supreme Court, San

10 Francisco and other jurisdictions urged the Court to vacate the injunction because the plaintiffs

11 had failed “to establish injury sufficient to enjoin the [programs] nationwide.” See Brief for

12 Amici Curiae, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345, at

13 *20 (Attachment 2 hereto). The City and its fellow amici argued that, to justify “an expansive

14 nationwide injunction,” the plaintiffs there would have to “establish standing to justify the scope

15 of the injunction.” Id. at *19, *30. In this case, San Francisco has not even attempted to establish

16 standing to seek a nationwide injunction against Section 9(a). By its own arguments, therefore,

17 any permanent injunction herein should be limited to San Francisco.10

18

CONCLUSION

19

For the reasons discussed above, plaintiff’s motion for summary judgment should be

20 denied.

21 Dated: September 27, 2017

22

23

9 Neither the Second Amended Complaint nor plaintiff’s motion for summary judgment

24

expressly requests a nationwide injunction, but the City’s motion for preliminary injunction did so (Doc. 21 at 1).

25

10 Additionally, any permanent injunction in this action, like the existing preliminary

injunction, should not include the President. See Cty. of Santa Clara v. Trump, ___ F. Supp. 3d

26 ___, 2017 WL 1459081, at *29 (N.D. Cal. Apr. 25, 2017) (“I conclude that an injunction against

the President is not appropriate.”); see also Newdow v. Bush, 391 F. Supp. 2d 95, 105, 106
27 (D.D.C. 2005) (“[T]he Supreme Court has sent a clear message that an injunction should not be

28

issued against the President for official acts.”). 28

Defs’ Opp. Summ. Judgment

No. 3:17-cv-00485-WHO

Case 3:17-cv-00485-WHO Document 172 Filed 09/27/17 Page 35 of 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs’ Opp. Summ. Judgment No. 3:17-cv-00485-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; ELAINE C. DUKE, Acting Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States
29

Case 3:17-cv-00485-WHO Document 172-1 Filed 09/27/17 Page 1 of 3
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Opposition to Plaintiff’s Motion for Summary Judgment
or, in the Alternative, Partial Summary Judgment
Attachment 1 Memorandum from the Attorney General
for All Department Grant-Making Components (May 22, 2017)

Case 3:17-cv-00485-WHO Document 172-1 Filed 09/27/17 Page 2 of 3
®ffic.e of fq.e J\ftnrn.eu ®.en.era!
�as£ringtnn, �.QL 20530 May 22, 2017

MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS

FROM: SUBJECT:

THE ATTORNEY GENERA
I
,L Implementation of Executive er 13768,
"Enhancing Public Safety in tU Interior of the United States"

Federal law provides a process for foreign citizens to lawfully enter the country. Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role of federal agencies, including the Department of Justice, to enforce our immigration laws, prosecute violations, and secure our borders.
The President has established immigration enforcement as a priority for this Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," on January 25, 2017. The Executive Order makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 1373 provides in part that state and local jurisdictions "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officers] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding. Section 9(a) expressly requires enforcement "to the extent consistent with law," and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or

Case 3:17-cv-00485-WHO Document 172-1 Filed 09/27/17 Page 3 of 3

Memorandum for All Department Grant-Making Components Subject: Implementation of Executive Order 13768,
"Enhancing Public Safety in the Interior of the United States"

Page2

statutory limitation. Nor does the Executive Order purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect. Indeed, apart from the Executive Order, the Department of Justice and the Department of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the Department of Justice will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to receive such awards. This certification requirement will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition. All grantees will receive notice of their obligation to comply with section 1373. The Department will administer this certification requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow, nothing in the Executive Order limits the Department's ability to point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department's law enforcement priorities. Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.

Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 1 of 25
City & County of San Francisco v. Donald J. Trump, et al.,
No. 3:17-cv-00485-WHO (N.D. Cal.) Opposition to Plaintiff’s Motion for Summary Judgment
or, in the Alternative, Partial Summary Judgment
Attachment 2 Brief for Amici Curiae, United States v. Texas,
136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345

Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 2 of 25
United States of America v. State of Texas, 2016 WL 891345 (2016)

2016 WL 891345 (U.S.) (Appellate Brief) Supreme Court of the United States.
UNITED STATES OF AMERICA, et al., Petitioners, v.
STATE OF TEXAS, et al., Respondents.
No. 15-674. March 7, 2016.
On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

Brief for Amici Curiae the Mayors of New York, Los Angeles, Atlanta, Austin, Birmingham, 113 Additional Mayors, County Executives, and Localities, the United States Conference of Mayors,
and the National League of Cities in Support of Petitioners

Zachary W. Carter, Corporation Counsel of the City of New York. Richard Dearing*, Cecelia Chang, Jeremy W. Shweder, Emma Grunberg, New York City Law, Department, 100 Church Street, New York, NY 10007, (212) 356-2500, rdearing@law.nyc.gov, for the City of New York and Mayor Bill de Blasio.
Michael N. Feuer, City Attorney.
James P. Clark, Chief Deputy City Attorney.
Wendy Shapero, Deputy City Attorney, for the City of Los Angeles and Mayor Eric Garcetti.
Cathy Hampton, City Attorney, for Kasim Reed, Mayor of Atlanta, for amici curiae.
Anne L. Morgan City Attorney, for Steve Adler, Mayor of Austin, Texas.
Thomas Bentley, III, Deputy City Attorney, for William A. Bell, Sr., Mayor of Birmingham, Alabama.
Donna R. Ziegler, County Counsel for the County of Alameda, for the County of Alameda, California.
Stephen Thies, City of Alamogordo Attorney, for the City of Alamogordo, New Mexico and for Mayor Susie Galea.
John J. Reilly, Corporation Counsel, for Katherine M. Sheehan, Mayor of Albany, New York.
James L. Banks, Jr., City Attorney, Office of the City Attorney, for the City of Alexandria, for the City of Alexandria, Virginia and Mayor Allison Silberberg.
Susan Ellis Wild, Solicitor, City of Allentown, Pennsylvania, for the City of Allentown and Mayor Ed Pawlowski.

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1

Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 3 of 25

United States of America v. State of Texas, 2016 WL 891345 (2016)

Nancy Diamond, City Attorney, for the City of Areata, California Mayor Paul Pitino.

Stephen A. MacIsaac, County Attorney, for the County Board of Arlington County, Virginia.

George A. Nilson, Baltimore City Solicitor, for Mayor Stephanie Rawlings-Blake acting on behalf of the Mayor and City Council of Baltimore.

David J. Aleshire, City Attorney, for the City of Bell, California.

Philippa M. Guthrie, Corporation Counsel, for the City of Bloomington, Indiana Mayor John Hamilton.

Robert B. Luce, City Attorney, City of Boise, for David H. Bieter, Mayor of the City of Boise, Idaho.

Eugene L. O’Flaherty, Corporation Counsel, City of Boston Law Department, for Martin J. Walsh, Mayor of the City of Boston, Massachusetts.

R. Christopher Meyer, City Attorney for the City of Bridgeport, on behalf of the Honorable Joseph P. Ganim, Mayor of the City of Bridgeport, Connecticut.

Mark Sossi, City Attorney, for the City of Brownsville, Texas Mayor Tony Martinez.

Timothy A. Ball, Corporation Counsel, for Byron W. Brown, Mayor of Buffalo, New York.

Nancy E. Glowa, City Solicitor, Law Department, for the City of Cambridge, Massachusetts.

G. Nicholas Herman, Robert E. Hornik, Jr., The Brough Law Firm, PLLC, for the Town of Carrboro, North Carolina Mayor Lydia Lavelle.

Matthew T. Jerzyk, City Solicitor, City of Central Falls, for James Diossa, Mayor of the City of Central Falls, Rhode Island.

Cheryl Watson Fisher, City Solicitor of the City of Chelsea, for the City of Chelsea, Massachusetts and City Manager Thomas G. Ambrosino.

Stephen R. Patton Corporation Counsel, for the City of Chicago, Illinois and Mayor Rahm Emanuel.

Rose M. Winkeler, Deputy County Attorney, Coconino County Attorneys Office, for the Coconino County, Arizona Board of Supervisors.

Richard C. Pfeiffer, Jr., City Attorney, City of Columbus, for Andrew Ginther, Mayor of the City of Columbus, Ohio.

Anita Alvarez, State’s Attorney, Donald J. Pechous, Paul A. Castiglione, Assistant State’s Attorneys, for Cook County, Illinois.

Wendy L. Elston, City Attorney, for the City of Crete, Nebraska Mayor Roger Foster.

Monica Lira Bravo, Lira Bravo Law, PLLC, for Dallas County, Texas, and Clay Lewis Jenkins, County Judge of Dallas County.

Harriet A. Steiner, City Attorney, Best Best & Krieger LLP, for Dan Wolk, Mayor of the City of Davis,

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2

Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 4 of 25

United States of America v. State of Texas, 2016 WL 891345 (2016)

California.
John C. Musto, Assistant City Attorney, City of Dayton, Ohio, Department of Law, for City of Dayton, Ohio and Nan Whaley, Mayor of the City of Dayton, Ohio.
D. Scott Martinez, City Attorney, for Michael B. Hancock, Mayor of the City & County of Denver.
John B. Murphey, Rosenthal, Murphey, Coblentz & Donahue, for the Village of Dolton, Illinois and Mayor Riley H. Rogers.
Patrick W. Baker, for the City of Durham, North Carolina.
Thomas M. Yeadon, for the City of East Lansing, Michigan and Mayor Mark S. Meadows.
Ricardo Palacios, Palacios, Garza, & Thompson, P.C., Corporation Counsel, for City of Edinburg, Texas and Mayor Richard H. Garcia.
Jo Anne Bernal, El Paso County Attorney, for El Paso County, Texas.
Michael Guina, City Attorney, for the City of Emeryville, California, Mayor Dianne Martinez.
W. Grant Farrar, Corporation Counsel, City of Evanston Law Department, for Elizabeth Tisdahl, Mayor of Evanston, Illinois.
Roger N. Knutson, City Attorney, for Peter Lindstrom, Mayor of Falcon Heights, Minnesota.
Niquelle Allen Winfrey, Corporation Counsel of the City of Gary, Indiana, for the City of Gary, Indiana and Mayor Karen Freeman-Wilson.
Andrew P. Oddo, Esq., Corporation Counsel, for the Borough of Haledon, New Jersey, for the Borough of Haledon and Mayor Domenick Stampone.
Howard G. Rifkin, Corporation Counsel, City of Hartford, for the City of Hartford, Connecticut and Mayor Luke Bronin.
Debra Urbano DiSalvo, Village Attorney, for Incorporated Village of Hempstead, New York.
Benjamin E. Gehrt, Partner, Clark Baird Smith LLP, for Nancy R. Rotering, Mayor of the City of Highland Park, Illinois.
Alysia M. Proko, Esq., Interim Corporation Counsel, City of Hoboken, for the Mayor and City of Hoboken, New Jersey.
Kara Lamb Cunha, Assistant City Solicitor, for Alex B. Morse, Mayor of Holyoke, Massachusetts.
Donna L. Edmundson, City Attorney, Judith Ramsey, Chief, General Litigation Section, City of Houston Legal Department, for Sylvester Turner, Mayor of Houston.
Scott A. Damron, City Attorney of the City of, Huntington, West Virginia, for the City of Huntington, West Virginia and Mayor Steve Williams.

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3

Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 5 of 25

United States of America v. State of Texas, 2016 WL 891345 (2016)

Aaron O. Lavine, Corporation Counsel, for Svante L. Myrick, Mayor of Ithaca, New York.
Monica Davis Joiner, City Attorney, for the City of Jackson, Mississippi Mayor Tony Yarber.
Jeremy Farrell, Corporation Counsel, City of Jersey City, for Steven M. Fulop, Mayor of the City of Jersey City, New Jersey.
William D. Geary, City Attorney, for Sylvester “Sly” James, Mayor of the City of Kansas City, Missouri.
Charles W. Swanson Law Director, City of Knoxville, Tennessee, for City of Knoxville, Tennessee and Mayor Madeline Rogero.
Jose M. Sanchez, City Attorney of the City of Livingston, for the City of Livingston, California and Mayor Rodrigo Espinoza.
Charles Parkin, City Attorney, for Robert Garcia, Mayor of Long Beach, California.
Mary C. Wickham, County Counsel, for Los Angeles County, California.
Julia Bates, Lucas County Prosecutor, By Steven J. Papadimos, First Assistant, Lucas County Prosecutor’s Office, for Board of Lucas County, Ohio, Commissioners, Tina Skeldon Wozniak, Pete Gerken, and Carol Contrada.
Michael P. May, City Attorney, for Paul R. Soglin, Mayor of Madison, Wisconsin.
Steven Woodside County Counsel, for the County of Marin, California.
Kori Termine Wisneski Deputy General Counsel, Office of the General Counsel, City of Middletown, for Daniel T. Drew, Mayor of the City of Middletown, Connecticut
Grant F. Langley, City Attorney, City of Milwaukee, for the City of Milwaukee.
Susan L. Segal, Minneapolis City Attorney, for Betsy Hodges, Mayor of Minneapolis, and the City of Minneapolis.
Marc P. Hansen, County Attorney, for Montgomery County, Maryland.
John Rose, Jr., Acting Corporation Counsel, for Toni N. Harp, Mayor of New Haven, Connecticut.
Jeffrey T. Londregan, Corporation Counsel, of the City of New London, for the City of New London, Connecticut and Mayor Michael E. Passero.
Rebecca Dietz, City Attorney, City of New Orleans, for Mitch Landrieu, Mayor of the City of New Orleans, Louisiana.
Kathleen E. Gill, Esq., Chief of Staff for Policy and Government Affairs/, Corporation Counsel, City of New Rochelle, for Mayor Bramson and the City of New Rochelle, New York.
Willie L. Parker, Esq., Corporation Counsel, City of Newark, Department of Law, for Ras J. Baraka, Mayor of the City of Newark, New Jersey.

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Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 6 of 25

United States of America v. State of Texas, 2016 WL 891345 (2016)

Donnalyn B. Lynch Kahn, City Solicitor, City of Newton, for Setti D. Warren, Mayor of the City of Newton, Massachusetts.
Craig H. Johnson, Corporation Counsel, for Paul A. Dyster, Mayor of Niagara Falls, New York.
Barbara J. Parker, City for the, City of Oakland, for Mayor Libby Schaaf and the City of Oakland.
Domenick Stampone, Esq., Corporation Counsel for the City of Paterson, for the City of Paterson, New Jersey and Mayor Jose “joey” Torres.
Samuel S. Goren, Esq., City Attorney, City of Pembroke Pines, for Pembroke Pines, Florida.
Sozi Pedro Tulante, City Solicitor, Philadelphia Law Department, for the City of Philadelphia and Mayor James F. Kenney.
Lourdes Sanchez Ridge, City Solicitor, Chief Legal Officer, for William Peduto, Mayor of Pittsburgh.
David L. Minchello, Corporation Counsel, for Adrian O. Mapp, Mayor of Plainfield, New Jersey.
Tracy Reeve, City Attorney, Harry Auerbach, Chief Deputy City Attorney, for Charlie Hales, Mayor of Portland, on behalf of the City Council of the City of Portland, Oregon.
M. Andree Green, County Attorney, for Prince George’s County, Maryland.
Trishka W. Cecil Mason, Griffin & Pierson, P.C., for Princeton, New Jersey.
Jeff Dana, City Solicitor, for Jorge O. Elorza, Mayor of the City of Providence, Rhode Island.
Bruce Reed Goodmiller, City Attorney, City of Richmond, for the City of Richmond and Mayor Tom Butt, City of Richmond, California.
Brian F. Curran, Corporation Counsel, Law Department, City of Rochester, for Lovely Warren, Mayor of the City of Rochester, New York.
Rachel M. Caruso, Borough Attorney, Borough of Roselle, for the Borough of Roselle, New Jersey Mayor Christine Dansereau.
James Sanchez, City Attorney, for the City Council, Sacramento, California.
Margaret D. Plane, Salt Lake City Attorney, Salt Lake City Corporation, for Salt Lake City and Mayor Jackie Biskupski,
Rick R. Olivarez, City Attorney, for the City of San Fernando, California.
Dennis J. Herrera, San Francisco City Attorney, for the City and County of San Francisco and Mayor Edwin M. Lee.
Richard Doyle, City Attorney, for Mayor Sam Liccardo and the City of San Jose, California.
John C. Beiers, County Counsel, for the County of San Mateo, California.

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Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 7 of 25

United States of America v. State of Texas, 2016 WL 891345 (2016)

Sonia R. Carvalho, City Attorney, City of Santa Ana, for the City of Santa Ana, California Miguel Pulido, Mayor.
Orry P. Korb, County Counsel, County of Santa Clara, for the County of Santa Clara, California.
Charlene Laplante, Chief Civil Deputy, Santa Cruz County Attorney, for the Board of Supervisors Santa Cruz County, Arizona.
Kelley A. Brennan, City Attorney, City of Santa Fe, for the City of Santa Fe Javier M. Gonzales, Mayor.
Marsha Jones Moutrie, City Attorney City of Santa Monica for the City of Santa Monica, California, Mayor Antonio Vazquez.
Carl G. Falotico, Corporation Counsel, for Gary R. McCarthy, Mayor of Schenectady, New York.
Ian Warner, Legal Counsel to the Mayor of Seattle, for Edward B. Murray, Mayor of Seattle.
Francis X. Wright, Jr., City Solicitor, City of Somerville, for Joseph A. Curtatone, as Mayor of Somerville, Massachusetts.
Bruce Goldstein, County Counsel, Alegria De La Cruz, Deputy County Counsel, County of Sonoma, for Sonoma County, California.
Cristal C. Brisco, Corporation Counsel of the City of South Bend, for the City of South Bend, Indiana and Mayor Pete Buttigieg.
Michael A. Garvin, City Counselor, for Francis G. Slay, Mayor of the City of St. Louis
Samuel J. Clark, City Attorney, for Mayor Chris Coleman, Saint Paul, Minnesota.
Terry J. Williams, Solicitor, for State College, Pennsylvania Borough Council and Mayor Elizabeth A. Goreham.
Kimberly A. Kisslan, City Attorney, City of Sunrise, for Michael J. Ryan, Mayor of Sunrise, Florida.
Robert P. Stamey, Corporation Counsel, for Stephanie A. Miner, Mayor of Syracuse, New York.
Elizabeth A. Pauli, City of Tacoma, City Attorney, for Marilyn Strickland, Mayor of the City of Tacoma.
Julia C. Mandell, Esq., City Attorney, for Bob Buckhorn, Mayor of the City of Tampa, Florida.
David A. Escamilla, Travis County Attorney, Sherine E. Thomas, Assistant County Attorney, Travis County Attorney’s Office, for Travis County, Texas.
Marc A. McKithen, Director of Law - City Attorney, for Eric E. Jackson, Mayor of the City of Trenton, New Jersey.
Krystle Nova, City Attorney, for the City of Union City, New Jersey.
Robert E. Barry, Esq., County Counsel, County of Union, for the County of Union, New Jersey.

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6

Case 3:17-cv-00485-WHO Document 172-2 Filed 09/27/17 Page 8 of 25

United States of America v. State of Texas, 2016 WL 891345 (2016)

Elizabeth A. Cavendish, General Counsel, Mayor Muriel Bowser, for Mayor Muriel Bowser, Washington, D.C.
Michael Jenkins, City Attorney, Jenkins & Hogin, LLP, for Lindsey P. Horvath, Mayor of West Hollywood, California.
Frank Consolo, Law Director, for Mayor Charles E. Smith and The Village of Woodmere, Ohio.
Philip J. Pogledich, County Counsel, County of Yolo, for the County of Yolo, California.
Michael V. Curti, Esq., Corporation Counsel, City of Yonkers, for Mike Spano, Mayor of the City of Yonkers, New York.
Jason R. Sabol, Esq., Assistant Solicitor of the City of York, Pennsylvania, for the City of York, Pennsylvania and Mayor C. Kim Bracey.
Carolyn Coleman, Esq., Director, Federal Advocacy, National League of Cities, for National League of Cities.
John Daniel Reaves, General Counsel, The United States Conference of Mayors, for The United States Conference of Mayors.
*i TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................................

i

TABLE OF AUTHORITIES .................................................................................................................

ii

INTEREST OF AMICI CURIAE .........................................................................................................

1

SUMMARY OF THE ARGUMENT ..................................................................................................

4

ARGUMENT .............................................................................................................................................

6

I. The Guidance Protects Longstanding Local Interests, and Enjoining the Guidance

6

Imposes Immediate Harms on Localities. ..........................................................................................

II. A Single Plaintiffs Claim of Future Administrative Costs Does Not Support Standing

18

for a Nationwide Injunction that Inflicts Widespread Local Harms ...........................................

CONCLUSION ..........................................................................................................................................

31

*ii TABLE OF AUTHORITIES

Cases

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ..........

27

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Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006) .........
Davis v. FEC, 554 U.S. 724 (2008) .............................................
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ................................................................
Massachusetts v. EPA, 549 U.S. 497 (2007) .............................
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ....................................................................................................
Salazar v. Buono, 559 U.S. 700 (2010) ......................................
United States v. Mendoza, 464 U.S. 154 (1984) ......................
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ...........
*iii Winter v. NRDC, Inc., 555 U.S. 7 (2008) ...........................
Statutes
USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 ...........................................................................................................
Other Authorities
Amendments to the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. (1989) ...........................................................................
Audrey Singer et al., Metropolitan Policy Program at Brookings, Local Insights From DACA for Implementing Future Programs for Unauthorized Immigrants (June 2015) ..................................................................................................................
Austin Police Department, Robbery Prevention & Immigrant Outreach (Hispanic), http://bit.ly/1RMG1za (last visited Mar. 4, 2016) ........................................................................
Bernard Weinraub, State Dept. Reverses Policy on Ethiopian Exiles in U.S., N.Y. Times, July 7, 1982 ................
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10
8
11
13
9
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Cities for Action, http://bit.ly/1QyRqzY (last visited Mar. 4, 2016) .....................................................................................................
*iv City of Albuquerque Resolution No. 2004-070 (June 7, 2004) .....................................................................................................
City of Austin Resolution (Jan. 30, 1997) ..................................
City of Boston, Mayor’s Office of New Bostonians, http://bit.ly/1Gfh22A (last visited Mar. 4, 2016) .....................
City of Chicago, Office of New Americans, Chicago New Americans Plan: Building a Thriving and Welcoming City (Dec. 2012) ..........................................................................................
Continuing Oversight of the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law, H. Comm. on the Judiciary, 100th Cong. (1987) .......................................................
Department of Homeland Security, U and T Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies (Jan. 4, 2016) .......
Eric Schmitt, Clinton Expected to Spare Haitians from Deportation, N.Y. Times, Dec. 17, 1997 ...................................
*v Haitian Detention and Interdiction: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. (1989) ......................
Houston Immigrant Legal Services Collaborative, http://www.citizenshipcorner.org (last visited Mar. 4, 2016) ..................................................................................................................
Immigration Reform and Control Act of 1982: Joint Hearings Before the Subcomm. on Immigration, Refugees, and International Law of the S. Comm. on the Judiciary, 97th Cong. (1982) .............................................................................
Implementation of Immigration Reform: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the S. Comm. on the Judiciary, 100th Cong. (1988) ...........................

15 13 13 15 12 8
10, 11
9 9 15 7
8

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Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities, Center for American Progress (Aug. 2012) ...............................
Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper Dictates?, 16 Pepp. L. Rev. 297 (1989) ..........................................................
*vi Lisa Christensen Gee et al., Undocumented Immigrants’ State & Local Tax Contributions, The Inst. of Taxation & Economic Policy (Feb. 24, 2016) .................................................
Liz Robbins, New York to Aid Immigrants Amid Stalled National Reforms, N.Y. Times, Dec. 14, 2015 .........................
Los Angeles City Attorney, Fighting Wage Theft, http://bit.ly/21bTAeO (last visited Mar. 4, 2016) ....................
Marie Price, Cities Welcoming Immigrants: Local Strategies to Attract and Retain Immigrants in U.S. Metropolitan Areas, International Organization for Migration (Dec. 2014) .....................................................................
Marvine Howe, I.N.S. Ruling Benefits Illegal Immigrant Children, N.Y. Times, Mar. 26, 1988 .........................................
Marvine Howe, The Region: Under the New Law, Illegal Aliens Suffer Much in Silence, N.Y. Times, Nov. 27, 1988 ..
Max Ehrenfruend, How having an undocumented parent hurts American children, Wash. Post, Mar. 4, 2015 ...............
*vii Nat’l Immigration Law Center, Immigration-inclusive State and Local Policies Move Ahead in 2014-15, Nat’l Immigration Law Center (Dec. 2015) .........................................
New Orleans Police Department, Operations Manual, Chapter 41.6.1, Immigration Status (effective Feb. 28, 2016) .....................................................................................................
New York City Exec. Order No. 34 (May 13, 2003) ..............
New York City Exec. Order No. 124 (Aug. 7, 1989) .............
Opening Minds, Opening Doors, Opening Communities:
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9
6, 16, 22, 23
15 14 13
8 18 17 13
14
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Cities Leading for Immigrant Integration, USC Dornsife Center for the Study of Immigrant Integration (Dec. 15, 2015) .....................................................................................................
Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims, Hearing Before the S. Comm. on the Judiciary, 114th Cong. (July 21, 2015) ...........
Pew Charitable Trusts, Immigration and Legalization: Roles and Responsibilities of States and Localities (Apr. 2014) .....................................................................................................
*viii Press Release, The Council of the City of New York, Speaker Quinn, New York City Council Members, Bloomberg Administration and Advocates Announce Funding to Provide New Yorkers Immigration Relief (July 17, 2013) ..............................................................................................
Press Release, Mayor of Los Angeles, Mayor Garcetti Announces Nationwide Actions as Court Hearings Proceed on Obama’s Immigration Reforms (Apr. 17, 2015) ................
Press Release, New York City Office of the Mayor, Mayor de Blasio Announces NYC Commission of Human Rights: First Such Agency in Major U.S. City to Issue U and T Visa Certifications (Feb. 9, 2016) ..........................................................
Randy Capps et al., Deferred Action for Unauthorized Immigrant Parents: Analysis of DAPA’s Potential Effects on Families and Children, Migration Policy Institute (Feb. 2016) .....................................................................................................
Raul Hinojosa-Ojeda, The Economic Benefits of Expanding the Dream: DAPA and DACA Impacts on Los Angeles and California, UCLA North American Integration & Development Center (Jan. 26, 2015) ...........................................
*ix Rebecca S. Carson, Ready or Not? Gauging Midwest Preparations for Executive Action on Immigration, The Chicago Council on Global Affairs (Mar. 2015) .....................
Ruth Milkman et al., Wage Theft and Workplace Violations in Los Angeles, UCLA Institute for Research on Labor and Employment (2014) ..........................................................................
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11
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USCIS, Interim Relief for Certain Foreign Academic

10

Students Adversely Affected by Hurricane Katrina:

Frequently Asked Questions (FAQ) (Nov. 25, 2005) .............

*1 INTEREST OF AMICI CURIAE1

Amici represent a broad coalition of local governments. One hundred and eighteen cities, counties, and local government officials have joined this brief as well as The U.S. Conference of Mayors, a nonpartisan group representing mayors of over 1,400 cities, and the National League of Cities, which represents more than 19,000 municipal governments nationwide.
Amici are home to some of the largest immigrant communities in the United States. More than 1.5 million children and parents potentially eligible for relief under the enjoined executive guidance live in our cities and towns. Amici submit this brief to explain why the nationwide injunction in this case - and the novel theory of standing asserted to support it - improperly ignores the irreparable harm to our residents from denying humanitarian deferred action relief.
*2 As amici have explained at every stage of this litigation: because undocumented immigrants are integral members of our communities, the enjoined deferred action programs protect vital local interests. Without the guidance, millions of families in our cities and counties face the threat of deportation, destabilizing our communities and jeopardizing the welfare of families and children. The nationwide injunction also undermines the ability of amici’s police departments to protect and serve all of our residents. Finally, the injunction imposes extensive economic harm on amici. Undocumented immigrants currently contribute hundreds of millions of dollars in tax revenues and other economic benefits to local communities every year. The deferred action programs will contribute over $800 million in additional economic benefits to state and local governments annually. New York City alone loses an estimated $100,000 in tax revenue each day the injunction remains in place.
Amici represent a diverse array of local interests, but are united in making one point: the impact of the injunction is most immediately and acutely felt on the local level. Yet the nationwide injunction in this case was issued without any court considering local harms or weighing local harms against the narrow standing “injury” established by plaintiffs: a claim by Texas, a single plaintiff state, of increased driver’s license processing costs.
The courts below never considered local harms within plaintiff states, let alone local harms *3 nationwide. Forty-four amici are located in plaintiff states or states that have joined amicus briefs supporting plaintiffs. For example, amici include Dallas County, Travis County, and El Paso County, as well as Austin, Houston, Brownsville, and Edinburg, local governments that collectively represent over twenty-six percent of Texas’s population. Other amici located outside plaintiff states represent over 42 million local residents. The interests of all of amici’s residents were ignored by the courts below in authorizing a nationwide injunction.

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If the role of local governments is to be respected, courts must ensure that the core requirements of standing are satisfied before the issuance of a nationwide injunction harming longstanding local interests. Amici submit this brief to explain the local impact of federal immigration measures, and to point out the legal and practical problems in issuing a nationwide injunction without considering the nationwide harms to local governments and their residents.
*4 SUMMARY OF THE ARGUMENT
This brief addresses the first question in the petition: whether plaintiff states have standing to bring this action. Amici local governments focus on an important element of standing: plaintiffs’ proof of standing for each form of relief sought. Here, several factors demonstrate why plaintiffs’ claim of standing to obtain a nationwide injunction is overbroad.
1. Immigration measures, like the guidance in this case, directly implicate significant local interests. For this reason, local governments have been active for decades in supporting deferred action and taking other steps to protect immigrant residents and their families. Federal humanitarian actions to defer deportation for law-abiding local residents, particularly parents and children, have far-reaching social and financial benefits for localities. Withholding and delaying deferred action, by contrast, threatens irreparable local harms for all of amici’s residents.
2. Despite the significant local impact, no court below considered local harms, including whether local harms vastly exceed the sole standing injury proven by Texas, before enjoining the guidance nationwide. No decision of this Court upholds such a sweeping standing theory. To the contrary, this Court has made clear that a party seeking a preliminary injunction must establish irreparable harm and “that an injunction is in the public *5 interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Requiring plaintiffs to establish standing injury sufficient to justify the geographic scope of judicial relief honors this Court’s warning that courts must weigh “competing claims of injury” and ensure that plaintiffs are not seeking overbroad relief before issuing an injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
3. But here the lower courts did not weigh competing claims of harm, because they treated plaintiff states’ projections about increased driver’s license administration costs - solely in Texas - as overriding tens of millions of dollars of lost revenue and extensive social and law enforcement harms for local governments in Texas and in other states.
4. This Court should not authorize a standing rule for nationwide injunctions that effectively gives objecting parties the right to veto federal policies in every locality in the country, while disregarding the harm to thousands of local governments across the nation. That overbroad concept of standing would invite parties to litigate over political disputes and settle important public questions, as in this case, by strategic litigation and sweeping injunctions that bear little relation to the narrow harms asserted.

*6 ARGUMENT

I. The Guidance Protects Longstanding Local Interests, and Enjoining the Guidance Imposes

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Immediate Harms on Localities.
Amici’s support for the enjoined guidance is based on decades of experience and. longstanding local efforts to protect our immigrant residents and families. As amici have emphasized at every stage of this litigation,2 the guidance protects undocumented immigrants who are important contributors to our cities and towns.3 By denying important humanitarian relief to millions of our residents, the injunction strikes at the heart of our *7 communities. The injunction imposes immediate harms on all local residents by threatening public health and safety, destabilizing families, and harming the social and economic wellbeing of our communities as a whole.

1. Local governments have long recognized that promoting the integration of immigrant residents is essential to the success of local communities, and that lack of integration imposes significant local harm. The depth of local concern in this area is demonstrated by local governments’ decades-long investment in both federal and local policies that advance immigrant integration. This investment reaches back to local support for the legalization provisions of the 1986 Immigration Relief and Control Act (IRCA), with the Los Angeles County supervisor testifying before Congress that legalization would promote integration and allow undocumented immigrants to become productive members of the community.4 Local governments - although not required to do so - played a key role in *8 implementing the IRCA legalization program, raising application rates in their communities.5

Following IRCA’s passage, local leaders and representatives lobbied for deferred action policies, later
enacted into law, to address the social and humanitarian cost of “split-eligibility families”: families where some members had legal status and others lived under the threat of deportation.6 In 1988, local pressure,
prompted by humanitarian concerns, led to a change in regulations to allow undocumented immigrant children in foster care to qualify for legal status under IRCA.7

*9 2. In the years surrounding IRCA, localities also responded to their residents’ fears of political strife
and persecution in their home countries by supporting other federal deferred action programs. For
example, congressional representatives and local government leaders from Los Angeles and Miami -
centers of immigration from Ethiopia and Haiti, respectively - supported deferred action programs in the 1980s and 1990s for those groups.8 At least twelve municipalities officially gave their support to federal deferred action for Salvadoran and Guatemalan refugees in the 1980s.9 More recently, deferred action
programs have provided humanitarian relief to individuals affected by regional disasters in the United States, such as *10 Hurricane Katrina and the September 11 terrorist attacks.10

3. Underscoring the strength of local interest in this area, localities have voluntarily embraced their role in federal relief programs for undocumented victims of crime. For example, the U and T visa programs, created in 2000, allow victims of crimes such as domestic violence and human trafficking to receive temporary status if they cooperate with law enforcement investigations.11 These programs address local interests by encouraging victims to come forward and cooperate with law enforcement. In turn, to increase trust and collaboration between localities and immigrant communities, many local police departments, prosecutors’ offices, family protective services, and other agencies have chosen to invest resources towards identifying potential *11 applicants and providing them with documentation to bolster their applications for federal relief.12

4. Localities continued their frontline implementation role during the 2012 Deferred Action for Childhood

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Arrivals (DACA) initiative. New York City budgeted $18 million for education, outreach, and legal service programs to encourage local residents to apply for relief.13 School districts in cities including San
Diego, California; Des Moines, Iowa; and Yakima, Washington added staff and offices and created new databases and systems to facilitate record requests.14 Immigrant affairs offices held public application
workshops, and in Los Angeles, the mayor re-established the dormant Office of Immigrant Affairs in part to assist applicants.15 Mayors’ offices across the country *12 facilitated access to public documents that
applicants would need; partnered with public libraries to hold outreach sessions: and ensured that residents
were not misled by cracking down on unqualified individuals offering fraudulent legal services to immigrants.16

5. In addition to supporting federal immigration relief programs, localities have also implemented
innovative local policies to promote immigrant integration. There are currently sixty-three offices
promoting immigrant integration at the municipal level across the country, and those numbers are growing.17 Starting in the 1980s, cities including New York, Chicago, Albuquerque, and Austin have
mandated that local services be provided to residents regardless of immigration status, based on local
leaders’ experience that public welfare requires all residents to have access to education, health, and police protection services.18 Policy *13 innovations like municipal identification cards - established by at least
seventeen localities, from Los Angeles to Milwaukee County, Wisconsin - further expand access to local services.19 Other localities have launched health care programs for undocumented residents.20 To build
trust between law enforcement and immigrant communities, police departments from metropolitan centers
and smaller cities have introduced immigration status confidentiality policies, special hotlines, and community education programs.21 Local officials *14 have also prosecuted employers who engage in wage theft and other abuses towards undocumented workers.22

6. The 2014 executive guidance protects these well-established local interests. The guidance extends humanitarian relief to the same category of “split-eligibility families” that local leaders had long sought relief for. And by offering deferred action relief to an estimated 3.8 million local residents, the guidance helps promote local governments’ existing integration efforts.

Because the impact of the guidance is most immediate at the local level, local governments provided early
and extensive support for its implementation. New York City has committed almost $8 million to prepare legal aid providers and *15 community groups for implementation of the guidance.23 Los Angeles raised $4 million for its 2015 campaign to help Los Angeles residents apply for deferred action.24 From Houston
to Indianapolis to Boston and beyond, localities have convened stakeholders to make plans, provide
information to immigrant residents, and ensure access to quality legal services to help residents with their applications.25 Indeed, weeks after the 2014 guidance was announced, a national coalition of mayors and
county leaders came together to support the guidance and share best practices for implementation. This coalition now includes over 100 mayors and county leaders.26

7. Given the local interests at stake, local governments have also made an extraordinary *16 effort to inform the courts below why a nationwide injunction should not issue. Amici have filed amicus briefs at every stage of this litigation explaining why a nationwide injunction blocking implementation of the guidance imposes immediate harms on amici’s residents.

As amici have explained, the injunction harms local economies. Preventing residents from working legally

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deprives localities of tax revenue, keeps families in poverty, and leaves undocumented residents vulnerable to employer exploitation and abuse. The guidance is estimated to increase the income of families with at least one eligible parent by about ten percent.27 Nationwide, it is estimated that the 2012 and 2014 deferred-action initiatives would increase state and local tax contributions by $805 million per year - $59 million for Texas alone.28 The injunction costs local governments hundreds of thousands of dollars each day it remains in effect.
Amici have also explained that the injunction imposes irreparable social harms. The enjoined guidance protects children and parents, *17 undocumented immigrants with family connections to the United States and local communities.29 Withholding deferred action places millions of families in our cities and counties at economic and personal risk - unable to legally support their families and afraid and reluctant to go to the police, seek health care, or take advantage of government services to aid themselves and their children, for fear of revealing the undocumented status of a family member. These harms extend beyond the potential applicants themselves: children of undocumented parents (including many children who are citizens of this country) suffer ongoing social and psychological harms due to fear of separation from parents, siblings, and other loved ones.30 And the safety of all residents is threatened *18 when community members are afraid to seek help from the police.31
Amici rely on the contribution of all residents, and harm to any significant portion of our residents and families affects the wider community. As a New York City official recognized almost thirty years ago: “If some New Yorkers are ill, poorly educated or easy victims of crime, all New Yorkers suffer. We cannot write off our undocumented aliens without great cost to ourselves.”32

II. A Single Plaintiffs Claim of Future Administrative Costs Does Not Support Standing for a Nationwide Injunction that Inflicts Widespread Local Harms
The longstanding local interests implicated by deferred action relief inform the standing question before the Court. Standing requirements are not technical doctrines. One of their core purposes is to assure that plaintiffs are not using federal courts as instruments of partisan political battles, short- *19 circuiting consideration of the public interest in enjoining government action. Here, the courts below failed to ensure that plaintiffs’ proven standing injury justified an expansive nationwide injunction. That standing error had profound practical consequences for amici. It meant that no court below considered the harms to local communities and local residents before issuing an injunction binding in amici’s home jurisdictions.

1. Here, although twenty-six states filed suit, the district court concluded that plaintiffs had established only one concrete form of injury:33 that Texas would allegedly incur “several million dollars” in future
administrative costs, processing driver’s license applications from residents who might qualify for deferred action under the guidance (Pet. App. 21a).34

*20 But this Court has made clear that “standing is not dispensed in gross,” and, as a result, any injunctive relief must be tailored to “the injury in fact that the plaintiff has established.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (citation and quotation marks omitted). To justify the scope of the preliminary injunction, plaintiffs had to establish injury sufficient to enjoin the guidance nationwide. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (parties must

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establish standing for each form of relief sought, including standing to obtain an injunction).
2. Close attention to standing in the injunction context protects third parties, such as amici and their residents, before a broad injunction is imposed that harms absent parties. This Court has warned that courts must weigh competing claims of injury and protect the public interest before issuing an injunction. See, e.g., Winter, 555 U.S. at 20; Weinberger, 456 U.S. at 313. If these duties are not followed, there is a serious risk that overbroad injunctions will serve as “instrument[s] of wrong.” Salazar v. Buono, 559 U.S. 700, 714-15, (2010) (citation and quotation marks omitted); see also Weinberger, 456 U.S. at 312 (warning courts to “pay *21 particular regard for the public consequences in employing the extraordinary remedy of injunction”). Standing is the starting point for these threshold inquiries. Courts cannot coherently tailor injunctions to avoid public harms unless the scope of relief a plaintiff is entitled to is clear from the outset.
At every stage of this litigation, amici local governments have endeavored to explain the extensive harms imposed and crucial benefits lost by enjoining the guidance in thousands of local communities across the nation. The theory of standing accepted by the lower courts, however, improperly ignored those interests - accepting a discrete and narrow claim of “injury” to a single plaintiff - as conferring standing to enjoin the guidance everywhere, regardless of harmful local impact. But the standing injury claimed does not match the expansive relief that was ordered.
Here, plaintiffs established only one form of alleged standing injury: that Texas may face additional administrative expenditures from increased driver’s license applications if the 2014 guidance goes into effect. Plaintiffs did not even establish that the increased expenditures constituted “harm” or “injury” in the ordinary meaning of those terms. By granting work authorization and recognizing the economic contribution of longterm undocumented residents, the guidance provides hundreds of millions of dollars in economic benefits to states and *22 localities.35 Plaintiffs did not disprove these benefits; they only claimed that the benefits were irrelevant even if Texas and other plaintiffs are net economic and fiscal beneficiaries under the guidance.
3. This concept of standing not only overlooks the lack of concrete financial injury to Texas, it also ignores the harms that a nationwide injunction imposes on localities. The courts below never evaluated why Texas’s claim of increased administrative costs (solely in Texas) warranted enjoining the guidance across the United States. Failure to adhere to threshold standing requirements meant in effect that the real world concerns of millions of local residents were overlooked.
In contrast to Texas’s narrow claim, of injury from future expenditures, blocking implementation of the guidance imposes extensive local harms - all of which the courts below disregarded because they accepted that Texas had standing to enjoin the guidance nationwide: • Local harms within Texas. Local governments within plaintiff states will suffer harm if the guidance is delayed. The *23 2012 and 2014 deferred-action initiatives would likely lead to millions of increased local tax contributions - one estimate is that the state of Texas and its local governments could receive $59 million a year from the initiatives.36 In fact, amici from Texas, representing 6.7 million Texas residents, oppose the preliminary injunction and confirm that the injunction will harm their residents, communities, and local governments.

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• Local harms outside Texas. Likewise, while plaintiffs proved no harm outside of Texas, local governments and millions of local residents in other states are harmed by the preliminary injunction. As amici have explained, even if confined to financial impact alone, the financial harm to local governments in other states far exceeds Texas’s claim of injury. New York City alone loses an estimated $35 million in tax revenue funds because the guidance is blocked for *24 New York City residents.37 In Los Angeles County, undocumented immigrants eligible for deferred action to could see wage growth of a combined $1.6 billion during the life of the guidance, leading to an estimated $1.1 billion in new tax revenue between personal, sales, and business taxes.38

• Irreparable non-financial harms. Even more important, plaintiffs’ standing theory rests on future financial expenditure alone. But monetary expenditure (particularly when offset by compensating economic benefits) generally does not qualify as irreparable harm. By contrast, amici have explained how the nationwide injunction imposes daily harms to amici’s law enforcement and public safety efforts and how the threat of deportation and lack of legal status harms *25 family stability and injures children. Those harms truly are irreparable; they cannot be undone even if the injunction is later lifted.

4. While the lower courts relied on Massachusetts v. EPA, 549 U.S. 497 (2007), that case did not address a nationwide injunction and does not bless plaintiffs’ standing theory here. In Massachusetts, the only question was whether plaintiff states had standing to seek judicial review of a petition for agency rulemaking. The requested rulemaking did not impose any harm on absent individuals or local governments. Moreover, the asserted injury was loss of state territorial lands through climate change, a form of irreparable injury specific to states as sovereign entities.39

This case presents the opposite scenario: plaintiffs sought and obtained a nationwide injunction that imposes widespread harms on absent parties, including local governments and their residents. And the standing “injury” asserted, increased future expenditures, is neither unique to *26 states in their sovereign capacity nor clearly irreparable in scope.

5. The lower courts’ analysis highlights the overbreadth in plaintiffs’ standing theory. Like almost all government actions, the executive guidance balances short-term costs and long-term benefits - here, the benefits to local communities by allowing certain law-abiding and longstanding residents to apply for deferred action relief. It would be almost impossible to implement any beneficial government action, particularly action that aids and protects a large number of individuals, without some party having to make some future administrative expenditures.

The type of administrative costs that Texas asserts are common to any number of parties, including nongovernmental parties like insurance companies, employers, and other businesses that might have to process additional applications or paperwork as a result of a challenged government guidance or action. It makes little sense to issue nationwide injunctions to parties who claim standing based on anticipated administrative costs without considering the public benefits associated with the challenged government action and without considering whether the plaintiff even suffers a net monetary loss.

The breadth of the standing theory in this case is compounded by the circuit majority’s rationale for a nationwide injunction. The two-judge majority *27 justified a nationwide injunction by presuming that a geographically limited injunction would be ineffective because eligible beneficiaries of the executive

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guidance could potentially relocate to Texas from other areas (Pet. App. 89a). But freedom of travel is a basic fact of life in the United States. The potential for individuals to move to a particular location from other areas exists in almost any case.
If that potential alone authorized standing to obtain a nationwide injunction40 notwithstanding widespread local harms elsewhere, local governments would be faced with an unworkable standing rule that placed the interests of their residents at risk. A fundamental trait of American life - unrestricted travel - would authorize nationwide injunctions as a matter of course in litigation challenging federal actions. The “migration” theory of nationwide injunctions also disregards the immediate effects of such injunctions on millions of individuals in their current communities. It disserves the public *28 interest to issue expansive relief based on the theoretical possibility of individuals relocating at some future point, while ignoring present-day harms to millions of local residents in the cities and counties where they reside right now.

6. Accepting such a broad standing theory also threatens to move generalized political disputes into federal courts, giving plaintiffs with narrow and confined injuries a mechanism to obtain nationwide injunctions. The most politically controversial subjects are also those most likely to affect the daily lives of individuals. Local governments are especially vulnerable because they provide frontline services arid directly experience the impact when residents are deprived of essential services, protections, and remedies because of a judicial injunction.

Again, the core components of plaintiffs’ claimed standing - projected future administrative costs plus the possibility of individuals traveling - could be asserted by a wide array of parties both public and private. Giving a single state (or a single party) standing to effectively veto federal action nationwide on such narrow proof of injury goes far beyond the existing standing principles recognized by this Court.41

*29 7. Finally, if standing to obtain a nationwide injunction is upheld based on projected administrative expenditures plus the possibility of individuals traveling, a huge swath of federal actions with critical effects on local residents would be subject to sweeping injunctive challenges in almost any district court in the nation. From a practical perspective, in order to protect municipal interests, local authorities would have to track lawsuits around the country and seek to file amicus briefs, or even intervene, to ward off harmful injunctions in their home jurisdictions.42

City and county attorneys accustomed to practicing only in their local courts would have to appear in faraway federal courts and attempt to present evidence of local harms in litigation involving other parties. Very few municipal law offices have these capabilities, particularly for preliminary injunction proceedings as in this case, *30 which take place on an expedited timeframe. For all these reasons, devoting scarce resources to stave off overbroad injunctions in far-flung jurisdictions is impractical, if not impossible, for the vast majority of the amici cities and counties.

****

In this case, no court below considered the harm to millions of people across thousands of local jurisdictions before issuing a nationwide injunction blocking the guidance. This Court should vacate the injunction because plaintiffs failed to establish standing to justify the scope of the injunction, or prove that the injunction served the public interest and was necessary to remedy cognizable harm to Texas.

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*31 CONCLUSION The judgment of the Court of Appeals should be reversed.

Footnotes
* Counsel of Record.
1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to this briefs preparation or submission. All counsel of record provided blanket consent for the filing of amicus briefs or received timely notice and consented to the filing of this brief.
2 See Br. for Amici Curiae the Mayors of New York, Los Angeles, Atlanta, and Eighty-One Additional Mayors et al. in Support of Petition for a Writ of Certiorari at 6-18 (No. 15-674); Br. for Amici Curiae the Mayors of New York and Los Angeles and Seventy-One Additional Mayors et al. in Support of Appellants at 10-28, No. 15-40238 (5th Cir. Apr. 6, 2015); Br. for Amici Curiae the Mayors of New York and Los Angeles and Thirty-One Additional Mayors et al. ir. Opposition to Plaintiffs’ Motion for Preliminary Injunction at 6-15, No. 14-cv-254 (S.D. Tex. Jan. 27, 2015), ECF No. 121.
3 In New York State alone, undocumented immigrants pay an estimated $1.1 billion in state and local taxes per year - supporting public services for all residents regardless of their immigration status. See Lisa Christensen Gee et al., Undocumented Immigrants’ State & Local Tax Contributions, The Inst, of Taxation & Economic Policy, 3 (Feb. 24, 2016), http://bit.ly/21rPuAd.
4 Immigration Reform and Control Act of 1982: Joint Hearings Before the Subcomm. on Immigration, Refugees, and International Law of the S. Comm. on the Judiciary, 97th Cong. 438 (1982) (statement of Deane Dana, Supervisor, Los Angeles County).
5 See Pew Charitable Trusts, Immigration and Legalization: Roles and Responsibilities of States and Localities, 12 (Apr. 2014), http://bit.ly/1TvNKVX.
6 Implementation of Immigration Reform: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the S. Comm. on the Judiciary, 100th Cong. 190 (1988) (statement of Edward I. Koch, Mayor, City of New York); Continuing Oversight of the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law, H. Comm. on the Judiciary, 100th Cong. 111-115 (1987) (statements of Rep. Hamilton Fish, Jr.. and Rep. Howard L. Berman, Members, Subcomm. on Immigration, Refugees, and Int’l Law).
7 Marvine Howe, I.N.S. Ruling Benefits Illegal Immigrant Children, N.Y. Times, Mar. 26, 1988; see

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also Amendments to the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 146-159 (1989) (Statements of John E. Oppenheim, Asst. Dir. for Finance and Administration, Dep’t of Social Services, Santa Clara County, and Carlos M. Sosa, Asst. Dir., Dep’t of Children’s Services of Los Angeles County).

8 Bernard Weinraub, State Dept. Reverses Policy on Ethiopian Exiles in U.S., N.Y. Times, July 7, 1982; Eric Schmitt, Clinton Expected to Spare Haitians from Deportation, N.Y. Times, Dec. 17, 1997; Haitian Detention and Interdiction: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 79-81 (1989) (Statement of Barbara Carey, Commissioner, Dade County, Miami).
9 Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper Dictates?, 16 Pepp. L. Rev. 297, 311 (1989).
10 USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005), http://1.usa.gov/1TvO0Eq; USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361.
11 Department of Homeland Security, U and T Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies, 4, 9 (Jan. 4, 2016), http://1.usa.gov/21Nu5Sm.

12 Id. at 3; Press Release, New York City Office of the Mayor, Mayor de Blasio Announces NYC Commission of Human Rights First Such Agency in Major U.S. City to Issue U and T Visa Certifications (Feb. 9, 2016), http://on.nyc.gov/1Qqptwy.
13 Press Release, The Council of the City of New York, Speaker Quinn, New York City Council Members, Bloomberg Administration and Advocates Announce Funding to Provide New Yorkers Immigration Relief (July 17, 2013), http://on.nyc.gov/1L7mWIE.
14 Pew Charitable Trusts, supra note 5 at 15.
15 Audrey Singer et al., Metropolitan Policy Program at Brookings, Local Insights From DACA for Implementing Future Programs for Unauthorized Immigrants 10, 14 (June 2015), http://brook.gs/1nlvK1O.

16 Rebecca S. Carson, Ready or Not? Gauging Midwest Preparations for Executive Action on Immigration, The Chicago Council on Global Affairs, 8 (Mar. 2015), http://bit.ly/1p4Q61c.
17 Opening Minds, Opening Doors, Opening Communities: Cities Leading for Immigrant Integration, USC Dornsife Center for the Study of Immigrant Integration, 5 (Dec. 15, 2015), http://bit.ly/1Qy7diq.
18 City of Chicago, Office of New Americans, Chicago New Americans Plan: Building a Thriving and

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Welcoming City, 33 (Dec. 2012), http://bit.ly/1OVg5gf; New York City Exec. Order No. 124 (Aug. 7, 1989); New York City Exec. Order No. 34 (May 13, 2003); City of Albuquerque Resolution No. 2004-070 (June 7, 2004); City of Austin Resolution (Jan. 30, 1997).
19 Nat’l Immigration Law Center, Immigration-inclusive State and Local Policies Move Ahead in 2014-15, Nat’l Immigration Law Center, 14-15 (Dec. 2015), http://bit.ly/1QXSRh0.
20 Id. at 13 (describing programs in California counties that provide health services to undocumented immigrants and a pilot program in New York City to use public and private funds to insure a mostly undocumented group).

21 See, e.g., Opening Minds, Opening Doors, Opening Communities, supra note 17 at 28 (describing strategies to build trust between police and immigrant communities in Tucson, Arizona; Boston, Massachusetts; and Norcross, Georgia); Marie Price, Cities Welcoming Immigrants: Local Strategies to Attract and Retain Immigrants in U.S. Metropolitan Areas, International Organization for Migration, 13 (Dec. 2014), http://bit.ly/1QXT5EV (describing New York City Police Department’s multilingual outreach program); Austin Police Department, Robbery Prevention & Immigrant Outreach (Hispanic), http://bit.ly/1RMGlza (last visited Mar. 4, 2016); New Orleans Police Department, Operations Manual, Chapter 41.6.1, Immigration Status (effective Feb. 28, 2016), available at: http://bit.ly/1p4QJrA.
22 See Ruth Milkman et al., Wage Theft and Workplace Violations in Los Angeles, UCLA Institute for Research on Labor and Employment, 58 (2014), http://bit.Jy/1p4R65F. For example, in 2014, the Los Angeles City Attorney’s Office prosecuted employers for failing to pay more than 50 employees approximately $250,000 in wages and overtime. As a result of this suit, Los Angeles created a hotline to assist residents victimized by wage theft. See Los Angeles City Attorney, Fighting Wage Theft, http://bit.ly/21bTAe0 (last visited Mar. 4, 2016).
23 Liz Robbins, New York to Aid Immigrants Amid Stalled National Reforms, N.Y. Times, Dec. 14, 2015.
24 Press Release, Mayor of Los Angeles, Mayor Garcetti Announces Nationwide Actions as Court Hearings Proceed on Obama’s Immigration Reforms (Apr. 17, 2015), http://bit.ly/1p4Rp0a.
25 Houston Immigrant Legal Services Collaborative, http://www.citizenshipcorner.org (last visited Mar. 4, 2016); Carson, supra note 16 at 8; City of Boston, Mayor’s Office of New Bostonians, http://bit.ly/1Gfh22A (last visited Mar. 4, 2016).
26 Cities for Action, http://bit.ly/1QyRqzY (last visited Mar. 4, 2016).
27 Randy Capps et al., Deferred Action for Unauthorized Immigrant Parents: Analysis of DAPA’s Potential Effects on Families and Children, Migration Policy Institute, 17 (Feb. 2016), http://bit.ly/1UNIHQR.
28 Gee, supra note 3 at 5.

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29 Capps, supra note 27 at 5, 7 (noting that more than two-thirds of parents potentially eligible for relief under the guidance have lived in the United States for at least ten years, and eighty-five percent of their minor children are U.S. citizens).
30 See Max Ehrenfruend, How having an undocumented parent hurts American children, Wash. Post, Mar. 4, 2015; Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities, Center for American Progress, 9 (Aug. 2012), http://ampr.gs/1nlxCrC; Capps, supra note 27 at 19-20.
31 See Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims, Hearing Before the S. Comm. on the Judiciary, 114th Cong. (July 21, 2015) (statement of Tom Manger, Major Cities Chiefs Association), available at http://bit.ly/1LESmpB.
32 Marvine Howe, The Region: Under the New Law, Illegal Aliens Suffer Much in Silence, N.Y. Times, Nov. 27, 1988.
33 The district court did not credit the other conclusory allegations of injury made by plaintiffs. Many of plaintiffs’ alleged “injuries” in fact rested on unproven claims about increased local fiscal burden (Respondents’ Br. in Opp. to Petition for a Writ of Certiorari at 12, 17 (No. 15-674)). But plaintiffs do not purport to represent local governments in their jurisdictions, and cannot “seek to enjoin” the 2014 guidance “on the ground that it might cause harm to other parties.” See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010).
34 The United States notes that Texas is claiming harm from a voluntary state subsidy because Texas could shift the cost of processing license applications to applicants (Pet’rs’ Br. at 26). Amici raise standing objections that would apply independently of any voluntary subsidy hurdle.
35 Gee, supra note 3 at 5.
36 Id.
37 See Br. for Amici Curiae the Mayors of New York, Los Angeles, Atlanta, et al. in Support of the Petition for a Writ of Certiorari at 15-18.
38 Raul Hinojosa-Ojeda, The Economic Benefits of Expanding the Dream: DAPA and DACA Impacts on Los Angeles and California, UCLA North American Integration & Development Center, 1 (Jan. 26, 2015), http://bit.ly/1TeIxRL.
39 This Court acknowledged “special solicitude” for states in assessing standing in this context only; nothing in the Court’s decisions authorizes lower federal courts to disregard the interests of other parties, including other states and local governments, merely because a state acts as plaintiff. Massachusetts, 549 U.S. at 520.

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40 Although this Court has required that threatened injury be “real, immediate, and direct” as well as “certainly impending” to support standing, Davis v. FEC, 554 U.S. 724, 734 (2008); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013), plaintiffs never proved that theorized migration into Texas was real and imminent, or even likely to increase the number of future driver’s license applications, given the potential for simultaneous migration of individuals and families out of Texas.
41 Standing theories that readily allow single-court nationwide injunctions also place crucial public issues in the hands of one judge - countermanding this Court’s caution that when government action is at stake, courts should not “thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” United States v. Mendoza, 464 U.S. 154, 160 (1984).
42 By divorcing the scope of the injunction from proven injury, the standing theory in this case encourages plaintiffs to strategically forum shop and to deliberately choose courts in forums where the harms of a broad injunction will not be obvious or apparent, and where it will be difficult for adversely affected parties, like local governments, to appear.

End of Document

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 Case 3:17-cv-00485-WHO Document 177 Filed 10/04/17 Page 1 of 20

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755 TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 MATTHEW S. LEE, State Bar #295247

8 NEHA GUPTA, State Bar #308864 Deputy City Attorneys

9 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

10 San Francisco, California 94102-4602 Telephone: (415) 554-4748

11 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff

13 CITY AND COUNTY OF SAN FRANCISCO

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

18 FRANCISCO,

19

Plaintiff,

PLAINTIFF CITY AND COUNTY OF SAN

FRANCISCO’S REPLY TO OPPOSITION TO

20

vs.

MOTION FOR SUMMARY JUDGMENT OR,

IN THE ALTERNATIVE, PARTIAL

21 DONALD J. TRUMP, President of the United SUMMARY JUDGMENT

States, UNITED STATES OF AMERICA,

22 ELAINE DUKE, Acting Secretary of United Date:

October 18, 2017

States Department of Homeland Security,

Time:

2:00 p.m.

23 JEFFERSON B. SESSIONS III, Attorney

Judge:

Honorable William H. Orrick

General of the United States, DOES 1-100,

Department: Courtroom 2, 17th Floor

24

Defendants.

Date Filed: January 31, 2017

25

Trial Date: April 23, 2018

26

27

28
CCSF’S Reply to Opposition to Plaintiff’s MSJ; CCSF v. President Trump, et al; Case No. 17-00485

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 Introduction......................................................................................................................................1

Argument .........................................................................................................................................2 4
I. San Francisco Is Entitled To A Declaratory Judgment That Chapters 12H And

5

12I Of Its Administrative Code Comply With Section 1373...................................2

6

A. San Francisco’s Declaratory Relief Claim Is Justiciable Because There Is An Actual Controversy About Whether 12H And 12I Conflict With

7

Section 1373.................................................................................................2

8

B. Chapters 12H And 12I Comply With Section 1373. ...................................5

1. Chapter 12H .....................................................................................5 9
2. Chapter 12I.......................................................................................8

10

3. Section 1373.....................................................................................9

11

C. Further Factual Development Is Not Necessary To Resolve This Claim. .11

12

II. San Francisco Is Entitled To Declaratory Relief And A Nationwide Injunction

Enjoining Section 9(A) Of The Executive Order. .................................................13

13

A. San Francisco’s Challenge To The Executive Order Is Justiciable. ..........13

14

B. The Executive Order’s Funding Restriction Violates The Separation of

Powers, The Spending Clause, And The Tenth Amendment. ...................13 15
C. The Executive Order’s Enforcement Provision Violates The Tenth

16

Amendment. ...............................................................................................14

17

D. The Court Should Issue A Nationwide Injunction Against All

Defendants. ................................................................................................14

18 Conclusion .....................................................................................................................................15

19

20

21

22

23

24

25

26

27

28

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1 Federal Cases
2

TABLE OF AUTHORITIES

Am. Title Ins. Co. v. Lacelaw Corp. 3 861 F.2d 224 (9th Cir. 1988) ......................................................................................................4

4 Apple, Inc. v. Telefonaktiebolaget LM Ericsson, Inc. 5 No. 15-cv-00154, 2015 WL 1802467 (N.D. Cal. Apr. 20, 2015)...............................................4

6 Arizona v. Atchison, Topeka and Santa Fe R.R. Co. 656 F.2d 398 (9th Cir. 1981) .......................................................................................................3
7 Bond v. United States
8 134 S. Ct. 2077 (2014)..............................................................................................................11
9 Brae Transp., Inc. v. Coopers & Lybrand 10 790 F.2d 1439 (9th Cir. 1986) ..................................................................................................12
11 Calderon v. Ashmus 523 U.S. 740 (1998)....................................................................................................................4
12 Califano v. Yamasaki
13 442 U.S. 682 (1979)..................................................................................................................14
14 California ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell 15 138 F.3d 772 (9th Cir. 1998) ....................................................................................................11
16 City of Edmonds v. Oxford House, Inc. 514 U.S. 725 (1995)....................................................................................................................3
17 Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council
18 485 U.S. 568 (1988)..................................................................................................................10

19 Gade v. Nat’l Solid Wastes Mgmt. Ass’n

20

505 U.S. 88 (1992)......................................................................................................................3

21 Goldman v. Salisbury (In re Goldman) 70 F.3d 1028 (9th Cir. 1995) .......................................................................................................6
22 Gregory v. Ashcroft
23 501 U.S. 452 (1991)..................................................................................................................11

24 Haw. Newspaper Agency v. Bronster 103 F.3d 742 (9th Cir. 1996).......................................................................................................3
25

26

Kim Ho Ma v. Ashcroft 257 F.3d 1095 (9th Cir. 2001) ..................................................................................................10

27 Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
28 475 U.S. 574 (1986)..................................................................................................................12

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Md. Cas. Co. v. Pac. Coal & Oil Co. 1 312 U.S. 270 (1941).....................................................................................................................2
2 MedImmune, Inc. v. Genentech, Inc. 3 549 U.S. 118 (2007).....................................................................................................................4

4 Medtronic, Inc. v. Mirowski Family Ventures, LLC 134 S. Ct. 843 (2014).............................................................................................................4, 11
5
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 6 145 F.3d 1399 (D.C. Cir. 1998) .................................................................................................14

7 Nevada v. Hicks 8 533 U.S. 353 (2001)..................................................................................................................11

9 New York v. United States 505 U.S. 144 (1992)..................................................................................................................11
10
Pacific Gas and Electric Company v. State Energy Resources Conservation 11 and Development Commission
12 461 U.S. 190 (1983).....................................................................................................................3

13

Perez v. Ledesma 401 U.S. 82 (1971).......................................................................................................................4

14 Qualls ex rel. Qualls v. Blue Cross of California, Inc.
15 22 F.3d 839 (9th Cir. 1994) .......................................................................................................12

16 RadLAX Gateway Hotel, LLC v. Amalgamated Bank 132 S. Ct. 2065 (2012).................................................................................................................7
17

18

Skydive Arizona, Inc. v. Quattrochi 673 F.3d 1105 (9th Cir. 2012) .............................................................................................14, 15

19 Societe de Conditionnement en Aluminium v. Hunter Eng'g Co.
20 655 F.2d 938 (9th Cir. 1981) .......................................................................................................2

21 Steele v. Bulova Watch Co. 344 U.S. 280 (1952)...................................................................................................................14
22 Steffel v. Thompson
23 415 U.S. 452 (1974).....................................................................................................................4
24 Steinle v. City and Cty. of San Francisco 25 230 F. Supp. 3d 994 (N.D. Cal. 2017) ...........................................................................10, 12, 13

26 Stewart v. Ragland

934 F.2d 1033 (9th Cir. 1991) .....................................................................................................7 27

Swoger v. Rare Coin Wholesalers 28 803 F.3d 1045 (9th Cir. 2015) ...................................................................................................12

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Texas v. United States 1 809 F.3d 134 (5th Cir. 2015) .....................................................................................................15
2 United States v. Morrison 3 529 U.S. 598 (2000)...................................................................................................................11 4 State Cases

5 People v. Brannon 32 Cal. App. 3d 971 (1973) .........................................................................................................8
6 Rose v. State
7 19 Cal.2d 713 (1942) ...................................................................................................................6
8 S.F. Taxpayers Ass’n v. Bd. of Supervisors 9 2 Cal.4th 571 (1992) ....................................................................................................................6

10 Traverso v. People ex rel. Dep’t of Transportation 46 Cal. App. 4th 1197 (1996) ..................................................................................................7, 8
11 Federal Statutes
12
8 U.S.C. 13 § 1373 ................................................................................................................................ passim

14 10 U.S.C. 15 § 4542(g)......................................................................................................................................8
16 28 U.S.C. § 2201 ..........................................................................................................................................4
17 Rules 18
California Rules of Court 19 Rule 10.855(j) ..............................................................................................................................8

20 Federal Rule of Civil Procedure

21

Rule 33 ......................................................................................................................................12 Rule 34 .......................................................................................................................................12

22 Rule 56 .................................................................................................................................11, 12

23 State Statutes and Codes

24 San Francisco Administrative Code Chapter 12H ....................................................................................................................... passim
25 Chapter 12I ........................................................................................................................ passim
Section 37.9E(j) ...........................................................................................................................8 26
Other References 27

28 10B Wright & Miller, Federal Practice And Procedure § 2759 ......................................................5

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1

Introduction

2

San Francisco seeks a declaration that “San Francisco Administrative Code Chapters 12H and 12I

3 comply with 8 U.S.C. § 1373.” Dkt. No. 158-1 at 2. Defendants’ suggestion that San Francisco seeks a

4 broader declaration about other laws, policies, or practices, is incorrect. See Dkt. No. 172 (“Opp.”) at

5 8, 16. While San Francisco believes that all of its laws, policies, and practices are consistent with

6 Section 1373, the present request for declaratory relief concerns only San Francisco’s sanctuary

7 laws—Chapters 12H and 12I—because these are the laws that Defendants have specifically targeted

8 for possible enforcement action.

9

Defendants have threatened three types of action against jurisdictions, such as San Francisco,

10 that they regard as violating Section 1373. First, the Executive Order itself directs the withholding of

11 federal funds from jurisdictions that “willfully violate Section 1373.” Executive Order § 9(a). Second,

12 Defendants have threatened to bring civil preemption suits against these jurisdictions. See

13 Supplemental Request for Judicial Notice in Support of Motion for Summary Judgment, or, in the

14 Alternative, Partial Summary Judgment (“Supp. RJN”) Exh. A at 8; Exh. B at 26. Third and finally,

15 Defendants have threatened criminal action against officials who falsely certify compliance with

16 Section 1373. Dkt. No. 163 (“MSJ RJN”) Exh. O at 38. These threats create significant pressure for

17 jurisdictions to change their laws, whether or not they already comply with Section 1373. Indeed, by

18 threatening dire consequences for non-compliance, while creating a maelstrom of uncertainty about

19 what is required to comply, Defendants seek to compel changes beyond the requirements of Section

20 1373 itself. See Dkt. No. 158 (“MSJ”) at 5 (noting that the Executive Order led Miami-Dade County to

21 change its detainer policy).

22

San Francisco seeks declaratory relief to alleviate these threats. Chapters 12H and 12I do not

23 restrict sending federal immigration officials information about an individual’s immigration status, and

24 they therefore comply with Section 1373. While Defendants would prefer to delay resolution of this

25 issue, and argue that it requires further factual development (Opp. at 16–17) or should be addressed in

26 another pending case (Opp. at 9), San Francisco’s claim presents a pure question of law that will be

27 the same regardless of the case in which it is litigated. Further, Defendants’ position that Chapters 12H

28 and 12I violate Section 1373 (Opp. at 13), coupled with their repeated suggestion that this issue should

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1 not be decided until Defendants bring an enforcement action against San Francisco (Opp. at 3, 9, 11),

2 underscores San Francisco’s need for declaratory relief. “The Declaratory Judgment Act was designed

3 to relieve potential defendants from the Damoclean threat of impending litigation which a harassing

4 adversary might brandish, while initiating suit at his leisure or never.” Societe de Conditionnement en

5 Aluminium v. Hunter Eng'g Co., 655 F.2d 938, 943 (9th Cir. 1981).

6

San Francisco also seeks declaratory relief and a permanent injunction against Section 9(a) of

7 the Executive Order. The Court has already held that San Francisco is likely to succeed on the merits

8 of its claims against the Executive Order and that injunctive relief is warranted. Defendants offer no

9 reason to reconsider this holding, and no reason to delay entry of a permanent injunction.

10 11 I. 12 13

Argument
San Francisco Is Entitled To A Declaratory Judgment That Chapters 12H And 12I Of Its Administrative Code Comply With Section 1373.
A. San Francisco’s Declaratory Relief Claim Is Justiciable Because There Is An Actual Controversy About Whether 12H And 12I Conflict With Section 1373.

14

The Court has already held that “San Francisco has stated a justiciable claim for declaratory

15 relief.” Dkt. No. 146 (“Recon. Order”) at 19. As the Court recognized, the relevant question for both

16 Article III standing and entitlement to relief under the Declaratory Judgment Act is whether the claim

17 concerns an “actual controversy.” Id. at 16. Fundamentally, “the question in each case is whether the

18 facts alleged, under all the circumstances, show that there is a substantial controversy, between parties

19 having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a

20 declaratory judgment.” Id. at 17 (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273

21 (1941)). An actual controversy about San Francisco’s sanctuary laws has existed throughout this

22 litigation, and this controversy is only underscored by Defendants’ brief, which contends that Chapters

23 12H and 12I conflict with Section 1373. Opp. at 13.

24

In arguing that San Francisco’s declaratory relief claim is not justiciable, Defendants seek to

25 impose four new barriers to declaratory relief. These barriers have no statutory basis, and as discussed

26 below, they conflict with numerous cases deciding declaratory relief claims in similar circumstances.

27

First, Defendants contend that declaratory relief is not appropriate because San Francisco has

28 already enacted the laws at issue. Opp. at 10. This is wrong. When there is an actual controversy about

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1 whether a local or state law complies with federal law, the local or state jurisdiction may seek

2 declaratory relief to resolve that controversy. See, e.g., City of Edmonds v. Oxford House, Inc., 514

3 U.S. 725, 730–31 (1995) (ruling on City of Edmonds’ declaratory judgment claim that the Fair

4 Housing Act did not constrain a City zoning code rule); Arizona v. Atchison, Topeka and Santa Fe

5 R.R. Co., 656 F.2d 398, 402–03 (9th Cir. 1981) (ruling on Arizona’s request for a declaration that its

6 scheme of assessing property for tax collection was consistent with the Railroad Revitalization and

7 Regulatory Reform Act of 1976).

8

Second, Defendants contend that the Court cannot issue declaratory relief about San

9 Francisco’s laws without reference to “the City’s policies and conduct in implementing those

10 ordinances.” Opp. at 11. This, too, is wrong. Courts routinely decide whether a state law is facially

11 consistent with federal law, without any inquiry into the state law’s implementation. See, e.g., Gade v.

12 Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98–99 (1992) (evaluating only the face of the laws at

13 issue in a declaratory judgment action regarding interaction between Illinois hazardous waste laws and

14 federal Occupational Safety and Health Act); Haw. Newspaper Agency v. Bronster, 103 F.3d 742, 746

15 (9th Cir. 1996) (holding “preemption challenge is fit for judicial decision” and that the court “can

16 decide the newspapers’ claim without further factual development”). In Pacific Gas and Electric

17 Company v. State Energy Resources Conservation and Development Commission, 461 U.S. 190

18 (1983), for instance, the Supreme Court decided a declaratory judgment action without awaiting

19 further factual development regarding California’s implementation of the challenged laws. Id. at 201.

20 The Court stated that “although it would be useful to have the benefit of California’s interpretation of

21 what constitutes a demonstrated technology or means for the disposal of high-level nuclear waste,

22 resolution of the preemption question need not await that development.” Id.

23

Indeed, Defendants’ Answer to San Francisco’s allegation that it complies with Section 1373

24 confirms that this a purely legal question calling for “conclusions of law.” Dkt. No. 152 ¶¶ 38, 145.1

25 Defendants are bound by their Answer, which forecloses their newfound argument that the Court

26

27

1 Defendants have also expressed the view that this is a legal question in requiring

certifications of compliance with Section 1373 from jurisdictions’ chief legal officers. MSJ RJN Exh.

28 O at 38.

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1 cannot decide this question without a factual inquiry. See Am. Title Ins. Co. v. Lacelaw Corp., 861

2 F.2d 224, 226 (9th Cir. 1988).

3

Third, the Court has already rejected Defendants’ argument (Opp. at 9, 11–12) that a plaintiff

4 must have an independent statutory cause of action to bring a claim for declaratory relief. Recon.

5 Order at 16–17. Defendants give no reason for the Court to revisit its prior holding on this issue.

6

Fourth, Defendants are wrong that declaratory relief is available only when it would eliminate

7 all “legal jeopardy.” See Opp. at 8–11. The Declaratory Judgment Act makes declaratory relief

8 available “whether or not further relief is or could be sought,” 28 U.S.C. § 2201, explicitly

9 acknowledging the possibility of further litigation related to the controversy at issue. Consistent with

10 this directive, declaratory judgments need not eliminate all sources of controversy between the parties.

11 For instance, the Supreme Court has repeatedly held that declaratory relief is appropriate on a patent

12 infringement theory even though it would not resolve potential contractual disputes. See Medtronic,

13 Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 848 (2014); MedImmune, Inc. v. Genentech,

14 Inc., 549 U.S. 118, 128-29 (2007). Similarly, the Court has explained that particular applications of a

15 statute may be declared unconstitutional, even though the statute could conceivably be constitutionally

16 applied in other circumstances. Steffel v. Thompson, 415 U.S. 452, 470 (1974) (quoting Perez v. 17 Ledesma, 401 U.S. 82, 104, 124–26 (1971)).2

18

Calderon v. Ashmus, 523 U.S. 740 (1998), is not to the contrary. Defendants rely on the

19 Court’s statement that an inmate contemplating a future habeas petition could not “carve out one issue

20 in the dispute for separate adjudication.” Id. at 749. Yet Calderon distinguished this request for an

21 advance ruling on a collateral legal issue from “the traditional scope of declaratory judgment actions”

22 which have “completely resolved a concrete controversy susceptible to conclusive judicial

23

24 2 Similarly, another court in the Northern District recently found declaratory relief to be proper
25 in a case where Apple sought declaratory judgment on seven of many patents held by Ericsson. Apple, Inc. v. Telefonaktiebolaget LM Ericsson, Inc., No. 15-cv-00154, 2015 WL 1802467 (N.D. Cal. Apr.
26 20, 2015). Ericsson argued that declaratory relief was improper because the dispute between Apple and Ericsson over Apple’s products involved more than just these seven patents. Id. at *2 (“Ericsson’s
27 main contention in its briefs and at oral argument is that Apple’s complaint is an inconsequential drop in the ocean that divides the parties.”). Relying on MedImmune, the court found that declaratory relief
28 was proper because the seven patents formed an adequate “case and controversy” between the parties.

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1 determination.” Id. San Francisco’s request for declaratory relief falls squarely within this latter

2 category. Defendants have threatened, among other things, to bring “civil litigation

3 asserting that a jurisdiction’s law or policy is preempted by federal law.” Supp. RJN Exh. A at 8; see

4 also Exh. B. at 26. And Defendants reiterate in their Opposition that they may bring an “enforcement

5 action” regarding “whether the San Francisco ordinances are consistent, on their face, with Section

6 1373.” Opp. at 3. San Francisco’s request for declaratory relief does not attempt to “carve out” an

7 isolated issue, but instead seeks relief that would completely resolve this threatened action. The

8 possibility that Defendants might take other action against San Francisco does not change this

9 analysis. “A declaratory action need not be dismissed because it could not settle all possible

10 differences between the parties[.]” 10B Wright & Miller, Federal Practice And Procedure § 2759.

11

B. Chapters 12H And 12I Comply With Section 1373.

12

1. Chapter 12H

13

Despite Defendants’ contrary arguments, Chapter 12H is fully consistent with Section 1373.

14 Chapter 12H includes two related prohibitions and a savings clause. The “assistance” provision

15 restricts “us[ing] any City funds or resources to assist in the enforcement of Federal immigration law.”

16 S.F. Admin. Code § 12H.2. The “information” provision restricts using City funds or resources to

17 “gather or disseminate information regarding release status of individuals or any other such personal

18 information as defined in Chapter 12I.” Id. Finally, the savings clause exempts from both provisions

19 any assistance “required by Federal or State statute, regulation, or court decision.” Id.

20

Defendants’ argument that Chapter 12H violates Section 1373 fails for three independent

21 reasons. First, Chapter 12H’s savings clause requires compliance with federal law, removing the

22 hypothetical conflict with Section 1373 that Defendants suggest. Second, Defendants focus on Chapter

23 12H’s “assistance” provision, but it is the more specific “information” provision that governs the

24 sharing of information with federal immigration officials, and permits sharing the narrow category of

25 information addressed by Section 1373. Third, the City amended Chapter 12H specifically to delete a

26 prior restriction against sharing immigration status information, evincing a clear intent to eliminate

27 this restriction and to comply with Section 1373.

28 //

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1

To begin, Chapter 12H’s savings clause expressly requires compliance with federal law. See

2 S.F. Admin. Code § 12H.2. This savings clause avoids the possible conflict that Defendants posit

3 between Chapter 12H and Section 1373. Indeed, the Justice Department’s Office of Inspector General

4 approved this precise language in a 2007 report evaluating jurisdictions’ cooperation with ICE and

5 compliance with Section 1373:

6

San Francisco has designated itself as a “City and County of Refuge” and has

limited the extent to which municipal agencies and employees may assist in

7

immigration enforcement. The City Administrative Code states that “no

department, agency, commission, officer or employee . . . shall use any City

8

funds or resources to assist in the enforcement of federal immigration law or to

gather or disseminate information regarding the immigration status of

9

individuals . . . unless such assistance is required by federal or state statute,

regulation or court decision.” The proviso requiring compliance with federal

10

law reinforces our view that there is insufficient evidence to conclude that San

Francisco fails to cooperate with ICE’s efforts to remove undocumented aliens.

11

12 Supp. RJN C at 24 (emphasis in original). The report went on to conclude that “in light of the specific

13 provisions requiring compliance with federal law, we cannot conclude that San Francisco’s policies 14 are contrary to 8 U.S.C. § 1373.” Id. at 26. This conclusion is correct.3

15

Defendants’ 12H arguments focus on Chapter 12H’s “assistance” provision, but it is the more

16 specific “information” provision that governs the sharing of information with federal immigration

17 officials. “A specific provision relating to a particular subject will govern in respect to that subject, as

18 against a general provision, although the latter, standing alone, would be broad enough to include the

19 subject to which the more particular provision relates.” S.F. Taxpayers Ass’n v. Bd. of Supervisors, 2 20 Cal.4th 571, 577 (1992) (quoting Rose v. State, 19 Cal.2d 713, 723–24 (1942)).4 Defendants argue that

21 this canon of statutory construction does not apply because of the disjunctive “or” between the two

22 clauses, meaning they can operate independently (Opp. at 14 n.4), but that argument is unavailing. As

23 the Supreme Court recently explained:

24

3 Defendants have recently changed their interpretation of the 12H savings clause, although the 25 savings clause remains unaltered. Defendants’ brief (Opp. 15-16) and a 2016 OIG memo opine that

26

the Chapter 12H savings clause “would not seem to be effective in precluding the law from running afoul of Section 1373.” MSJ RJN Exh. F at 6 n.7. Defendants do not explain this change in position.

27

4 Federal courts are “bound by California rules of construction in [their] independent

interpretation of the California statutes at issue.” Goldman v. Salisbury (In re Goldman), 70 F.3d 1028,

28 1029 (9th Cir. 1995).

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1

We know of no authority for the proposition that the canon is confined to situations in which the entirety of the specific provision is a “subset” of the

2

general one. When the conduct at issue falls within the scope of both provisions, the specific presumptively governs, whether or not the specific provision also

3

applies to some conduct that falls outside the general.

4 RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2072 (2012). Here, the conduct

5 at issue is sharing immigration status information with federal immigration officials. As in RadLAX,

6 that conduct could fall within the scope of both provisions, but the specific “information” provision

7 presumptively governs.

8

Thus, responding to Defendants’ hypothetical, Chapter 12H does not “prevent an employee

9 from using her office telephone to call federal authorities to report on an individual’s immigration

10 status.” Opp. at 15. This sharing of information is governed by the specific provision about sharing

11 information with federal immigration officials, not by the general prohibition against assisting in the

12 enforcement of immigration law. And as explained below, the information provision was amended to

13 allow sharing immigration status information, ensuring compliance with Section 1373.

14

Indeed, the third reason Defendants’ argument fails is that the City amended Chapter 12H

15 specifically to delete a prior restriction against sharing immigration status information. See Supp. RJN

16 Exh. D. The information provision previously prohibited sharing information about “immigration

17 status,” but the City amended that prohibition in July 2016 to delete the reference to “immigration

18 status” and replace it with “release status and other such personal information.” Neither “release

19 status” nor “personal information” encompasses immigration status information as addressed by

20 Section 1373. See MSJ at 11. “Release status” refers to whether an individual is in law enforcement

21 custody and “personal information” is defined to mean “any confidential, identifying information

22 about an individual, including, but not limited to, home or work contact information, and family

23 emergency contact information.” S.F. Admin. Code § 12I.2. This does not include information about a

24 person’s immigration status, which cannot be used to identify or contact an individual.

25

“When legislators delete language, we may assume that they intended to eliminate the effect of

26 the previous wording.” See Stewart v. Ragland, 934 F.2d 1033, 1037 n.6 (9th Cir. 1991). Put

27 differently, “[t]he sweep of [a] statute should not be enlarged by insertion of language which the

28 Legislature has overtly left out.” Traverso v. People ex rel. Dep’t of Transportation, 46 Cal. App. 4th

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1 1197, 1207 (1996) (quoting People v. Brannon, 32 Cal. App. 3d 971, 977 (1973)). Construing Chapter

2 12H to prohibit sharing immigration status information would run afoul of this rule. The Board of

3 Supervisors deleted a restriction against sharing immigration status information. The Court should

4 reject Defendants’ attempts to reinsert that deleted language in order to create a conflict with federal

5 law where none otherwise exists.

6

2. Chapter 12I

7

Defendants cite two provisions of Chapter 12I in arguing that it violates Section 1373. Neither

8 of these provisions, however, conflicts with Section 1373.

9

Section 12I.3(e) states in full: “Law enforcement officials shall not arrest or detain an

10 individual, or provide any individual’s personal information to a federal immigration officer, on the

11 basis of an administrative warrant, prior deportation order, or other civil immigration document based

12 solely on alleged violations of the civil provisions of immigration laws.” Id. (emphasis added). As

13 explained above, however, “personal information” does not include immigration status, and this

14 subsection does not restrict local officials from sharing immigration status information with federal

15 officials. Indeed, this definition was added at the same time that the City deleted a reference to

16 immigration status information, establishing a clear intent to remove any restriction on sharing that

17 information. See pages 7–8, supra.

18

Section 12I.5 requires the Sheriff and Juvenile Probation Officer to provide semi-annual

19 reports to the Board of Supervisors that include, among other things, “a description of any

20 communications the Department made to the Federal agency charged with enforcement of the Federal

21 immigration law.” Defendants contend, without evidence, that this reporting requirement discourages

22 local officers from sharing immigration status information with federal authorities. Yet this is a run-of23 the-mill reporting requirement—typical in federal, state, and local law5—that gives policymakers

24

25

5 See, e.g., 10 U.S.C. § 4542(g) (requiring the Secretary of the Army to file a semi-annual

report with Congress describing any cooperative project agreements it enters into with foreign

26 countries regarding a technical data package for large-caliber weapons); Cal. Rules of Ct. 10.855(j)

(requiring each superior court to file a semi-annual report to the California Judicial Council containing

27 a list of court records destroyed, preserved, or transferred according to statutory requirements); S.F.

Admin. Code § 37.9E(j) (requiring the San Francisco Rent Board to provide an annual report to the

28 Board of Supervisors listing all rental units that have been the subject of buyout agreements).

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1 information about how laws are implemented. Defendants’ argument implies that San Francisco must

2 amend or delete its reporting requirements in order to conform with Section 1373. Yet this suggestion

3 that the City’s legislative body must be kept in the dark about City employees’ communications with

4 federal officials raises serious Tenth Amendment concerns. See pages 10–11, infra.

5

Finally, Defendants argue—without a scintilla of evidence—that “a San Francisco officer

6 would risk disciplinary action any time he or she shared information regarding immigration status,

7 rendering the ordinance in square violation of Section 1373.” Opp. at 14. This is pure conjecture, with

8 no support in the record or in the plain text of Chapter 12I. To the contrary, record evidence shows

9 that San Francisco has affirmatively informed all employees about their rights under Section 1373, and

10 explained that Chapters 12H and 12I impose other types of restrictions, which are consistent with

11 federal law. MSJ RJN Exh. V.

12

3. Section 1373

13

The plain text of Section 1373 does not limit a local government’s actions regarding any

14 information except for “citizenship or immigration status.” As discussed above, Chapters 12H and 12I

15 do not regulate this category of information. Defendants’ argument that these ordinances nonetheless

16 violate Section 1373 depends on an expansive interpretation of Section 1373 that is divorced from the

17 statutory text and raises serious constitutional questions. For both reasons, the Court should reject

18 Defendants’ overly broad interpretation of Section 1373, and hold that the statute means what it says:

19 local governments may not restrict employees from sharing immigration status information with

20 federal immigration officials, but they may impose other restrictions.

21

As one example of Defendants’ expansive interpretation of Section 1373, they now argue that

22 it may cover release date information requested in ICE detainers (Opp. at 12), despite prior briefing to

23 the contrary (Dkt. No. 133 at 7–8). ICE detainers ask jurisdictions to notify the Department of

24 Homeland Security at least 48 hours before releasing a named individual from custody, and to

25 maintain custody of the individual for up to 48 hours beyond the scheduled release time in order to

26 allow DHS to take them into custody. See Dkt. No. 161 at Exh. A. Yet notwithstanding Defendants’

27 attempt to bring notification of release date within the scope of Section 1373, “no plausible reading of

28 ‘information regarding . . . citizenship or immigration status’ encompasses the release date of an

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1 undocumented inmate.” Steinle v. City and Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D.

2 Cal. 2017). The Steinle court explained:

3

Nothing in 8 U.S.C. § 1373(a) addresses information concerning an inmate’s

release date. The statute, by its terms, governs only “information regarding the

4

citizenship or immigration status, lawful or unlawful, of any individual.” 8

U.S.C. § 1373(a). If the Congress that enacted the Omnibus Consolidated

5

Appropriations Act of 1997 (which included § 1373(a)) had intended to bar all

restriction of communication between local law enforcement and federal

6

immigration authorities, or specifically to bar restrictions of sharing inmates’

release dates, it could have included such language in the statute. It did not, and

7

no plausible reading of “information regarding . . . citizenship or immigration

status” encompasses the release date of an undocumented inmate. Because the

8

plain language of the statute is clear on this point, the Court has no occasion to

consult legislative history. 9

10 Id. Steinle’s reasoning is correct, and it also applies to Defendants’ suggestion that Section 1373 is

11 implicated by any requirement that could have the effect of “discouraging local officers from sharing

12 immigration-status information with federal authorities.” Opp. at 14. As Defendants’ argument makes

13 clear, they view any restriction on assisting with federal immigration enforcement or communicating

14 with ICE as discouraging information sharing, and potentially violating Section 1373. For a

15 jurisdiction to comply with Defendants’ expansive view of Section 1373, it would have to allow

16 employees to spend significant time and resources responding to detainer requests, among other

17 things. See Dkt. No. 160 (noting additional administration and training required to comply with ICE

18 detainer requests); Dkt. No. 161 (noting increasing volume of detainer requests).

19

Even if the text of Section 1373 could possibly be read to require jurisdictions to do more than

20 allow employees to share immigration status information with federal officials, the canon of

21 constitutional avoidance would preclude this interpretation. When faced with two possible

22 constructions of a statute, one of which raises “serious constitutional problems,” a reviewing court

23 should adopt the interpretation that poses no such constitutional difficulty. Edward J. DeBartolo Corp.

24 v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). For the doctrine to

25 apply, it is not necessary for a court to determine that the proffered interpretation is unconstitutional. It

26 is sufficient that the interpretation would give rise to serious constitutional questions. Id. at 191; Kim

27 Ho Ma v. Ashcroft, 257 F.3d 1095, 1111 (9th Cir. 2001).

28 //

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1

At a minimum, Section 1373 would raise serious Tenth Amendment questions if it required

2 local governments to help enforce federal immigration laws, by, for example, responding to detainer

3 requests. “The Federal Government may not compel the States to enact or administer a federal

4 regulatory program.” New York v. United States, 505 U.S. 144, 188 (1992). Section 1373 would also

5 pose serious constitutional questions if it were read to preempt local laws like Chapters 12H and 12I,

6 which reflect San Francisco’s considered judgment that limiting local involvement in federal

7 immigration enforcement promotes public health, safety, and welfare. S.F. Admin. Code § 12.I.1.

8 These traditional matters of local concern lie at the heart of a state’s police power. See, e.g., United

9 States v. Morrison, 529 U.S. 598, 618 (2000); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).

10 Similarly, interpreting Section 1373 to impose additional restrictions on a state’s authority to control

11 its own employees—by, for example, precluding reporting requirements about employees’ actions

12 within the scope of their official duties—would strike at the heart of state sovereignty. See Nevada v.

13 Hicks, 533 U.S. 353, 365 (2001); see also Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). “[I]t is

14 incumbent on the federal courts to be certain of Congress’ intent before finding that federal law

15 overrides the ‘usual constitutional balance of federal and state powers.’” Bond v. United States, 134 S.

16 Ct. 2077, 2089 (2014) (quoting Gregory, 501 U.S. at 460). Section 1373 provides no such certainty,

17 and the Court should decline Defendants’ invitation to adopt an interpretation that raises serious

18 constitutional questions.

19

C. Further Factual Development Is Not Necessary To Resolve This Claim.

20

Defendants make a half-hearted request for further factual development under Federal Rule of

21 Civil Procedure 56(d), but they make no attempt to satisfy the requirements of this Rule. Opp. at 17.

22 Rule 56(d) requires a party seeking continuance of a summary judgment motion to “show[] by

23 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its

24 opposition . . . .” This affidavit must show (1) “the specific facts that [Defendants] hope to elicit from

25 further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are ‘essential’ to

26 resist the summary judgment motion.” California ex rel. Cal. Dep’t of Toxic Substances Control v.

27 Campbell, 138 F.3d 772, 779–80 (9th Cir. 1998). “References in memoranda and declarations to a

28 need for discovery do not qualify as motions under Rule 56(f)” (which was subsequently recodified as

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1 Rule 56(d)). Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Thus,

2 Defendants cannot move for Rule 56(d) relief by merely stating in their brief that “factual

3 development . . . would be needed” in this matter. Opp. at 17.

4

Even if Defendants had made a proper motion, Rule 56(d) has no bearing on a case that

5 involves “a pure question of law.” Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1048–49 (9th

6 Cir. 2015). As discussed in Section I(A), supra, San Francisco’s declaratory relief claim presents a

7 pure question of statutory construction: whether Chapters 12H and 12I comply with Section 1373.

8 Defendants previously agreed that no factual development is needed to resolve this claim, stating that

9 whether they would seek discovery from San Francisco turned on how San Francisco styled its

10 declaratory relief claim. See Supp. RJN Exh. E at 13:5-18. Defendants made clear that no discovery

11 would be necessary if San Francisco’s claim was “based only on the face of their ordinances.” Id.

12

Consistent with this representation, Defendants have not sought any form of discovery in this

13 case, and the time for them to do so has passed. See Dkt. No. 88 (setting close of fact discovery on

14 October 31, 2017); Fed. R. Civ. P. 33 and 34 (allowing 30 days to respond to written discovery). This

15 creates an additional bar to Rule 56(d) relief, which requires that a party seeking further factual

16 development has “diligently pursued its previous discovery opportunities.” Qualls ex rel. Qualls v.

17 Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994).

18

Finally, Defendants speculate without evidence that San Francisco has internal policies that

19 conflict with Section 1373. Yet “[w]hen the moving party has carried its burden under Rule 56(c), its

20 opponent must do more than simply show that there is some metaphysical doubt as to the material

21 facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (footnote

22 omitted). For the reasons explained above, San Francisco’s policies are not material to the Court’s

23 decision about whether Chapters 12H and 12I on their face conflict with Section 1373. And even if

24 they were relevant, the only record evidence suggests that these policies are consistent with Chapters 25 12H and 12I, and with Section 1373.6 See MSJ RJN Exh. V; see also Section I(B)(2), supra.

26

6 Instead of offering evidence on this point, Defendants repeatedly cite Steinle’s discussion of a

memorandum, issued by a prior San Francisco sheriff under a prior version of Chapter 12H, that 27 restricted providing citizenship or immigration status information to ICE. Opp. at 10, 11, 17 (citing

Steinle, 230 F. Supp. 3d at 1003-04). But San Francisco’s current Sheriff revoked the memorandum

28

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1 II. 2

San Francisco Is Entitled To Declaratory Relief And A Nationwide Injunction Enjoining Section 9(A) Of The Executive Order.

3

Defendants offer no reason why this Court should not permanently enjoin Section 9(a) of the

4 Executive Order. Instead, they simply repeat arguments they have made previously regarding the

5 justiciability of San Francisco’s claims and the impact of the AG Memorandum. This Court has

6 already rejected Defendants’ arguments. See generally Recon Order. It should do the same here, and

7 enter a nationwide permanent injunction prohibiting enforcement of the Executive Order.

8

A. San Francisco’s Challenge To The Executive Order Is Justiciable.

9

Defendants argue that San Francisco lacks standing to pursue its challenges to the Executive

10 Order. Defendants claim that San Francisco cannot point to a concrete injury from the Executive

11 Order, and argue that the Executive Order is an internal directive that does not govern the

12 implementation of existing law. This Court has previously rejected these exact arguments, and

13 concluded that San Francisco’s claims are ripe, that San Francisco has standing, and that the Executive

14 Order is not an internal directive. Recon. Order at 14–15; see also Dkt. No. 82 (“PI Order”) at 11–35.

15

Defendants offer no new reason why San Francisco’s claims are not justiciable. Instead, they

16 argue that the Federal Government’s failure to take any steps to implement the Executive Order—

17 aside from the AG Memorandum—shows that San Francisco is not injured. Opp. at 19. But Section

18 9(a) has been enjoined during this time (PI Order at 49), and Defendants’ inaction while they are

19 bound by the preliminary injunction does not diminish San Francisco’s standing to seek summary

20 judgment.

21

B. The Executive Order’s Funding Restriction Violates The Separation of Powers,

22

The Spending Clause, And The Tenth Amendment.

23

Defendants also reiterate their previous arguments that the Funding Restriction complies with

24 the Separation of Powers, the Spending Clause, and the Tenth Amendment. But this Court has

25

26 discussed in Steinle, and the Sheriff’s current policies conform with the current version of Chapter 12H. See Declaration of Sheriff Vicki Hennessy In Support of San Francisco’s Reply to Opposition to
27 Motion for Summary Judgement at ¶¶ 5-6. These policies do not restrict Department employees from providing ICE representatives with citizenship or immigration status information. Id. at ¶ 6.
28

CCSF’S Reply to Opposition to Plaintiff’s MSJ;

13

CCSF v. President Trump, et al; Case No. 17-00485

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1 previously held that the Executive Order offends these constitutional provisions, see Recon. Order at 2 15, PI Order at 35–41, and none of Defendants’ arguments affect the Court’s earlier analysis.7

3 Defendants continue to suggest that the AG Memorandum eliminates these constitutional concerns.

4 Opp. at 20–25. But this Court has already found that the AG Memorandum is nothing more than “an

5 ‘illusory promise’ to enforce the Executive Order narrowly and, as such, does not resolve the

6 constitutional claims” that San Francisco has brought. Recon. Order at 13–14.

7

C. The Executive Order’s Enforcement Provision Violates The Tenth Amendment.

8

Defendants likewise offer no reason why the Court should not grant summary judgment

9 regarding the Executive Order’s Enforcement Provision. The Court has already found the Enforcement

10 Provision to exceed the Tenth Amendment’s limitations. See Recon. Order at 15; PI Order at 39–41.

11

D. The Court Should Issue A Nationwide Injunction Against All Defendants.

12

Because the Executive Order applies nationwide, the Court should issue a nationwide

13 injunction preventing its enforcement. “[T]he scope of injunctive relief is dictated by the extent of the

14 violation established, not by the geographical extent of the plaintiff.” Califano v. Yamasaki, 442 U.S.

15 682, 702 (1979). District courts routinely grant nationwide injunctions, particularly in cases like this

16 one involving the facial invalidity of a federal law. See, e.g., Steele v. Bulova Watch Co., 344 U.S.

17 280, 289 (1952) (noting that “the District Court in exercising its equity powers may command persons

18 properly before it to cease or perform acts outside its territorial jurisdiction”); Nat’l Min. Ass’n v. U.S.

19 Army Corps of Eng’rs, 145 F.3d 1399, 1410 (D.C. Cir. 1998) (affirming a nationwide injunction in the

20 context of a “facial challenge to the validity of a [federal] regulation”).

21

Defendants’ contrary arguments are unavailing. Opp. at 27–28. That the Ninth Circuit affirmed

22 the denial of a nationwide injunction in a single case, Skydive Arizona, Inc. v. Quattrochi, 673 F.3d

23 1105, 1116 (9th Cir. 2012), has no bearing on whether nationwide relief is appropriate here. The

24 Skydive Arizona injunction was limited to Arizona because the plaintiff failed to provide that the

25 defendant’s “conduct outside Arizona was illegal.” Id. Here, by contrast, Section 9(a) of the Executive

26

27

7 Indeed, San Francisco’s reliance on federal funds—and the attendant harm threatened by the

Executive Order—is clearer than ever. See Supp. RJN Exh. F.

28

CCSF’S Reply to Opposition to Plaintiff’s MSJ;

14

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1 Order is unconstitutional on its face, and Defendants’ conduct to enforce Section 9(a) anywhere in the

2 nation would be illegal. In short, Skydive Arizona merely reinforces that a lower court has the 3 discretion to craft an injunction that will remedy the harm at issue.8

4

Defendants offer no authority to the contrary. Instead, they dredge up an amicus brief San

5 Francisco signed opposing a nationwide injunction in Texas v. United States, 809 F.3d 134, 188 (5th

6 Cir. 2015). As Defendants acknowledge (Opp. at 28), the court in that case affirmed a nationwide

7 injunction against a federal program. That San Francisco unsuccessfully opposed a nationwide

8 injunction in a separate case cannot forever preclude it from seeking nationwide relief in another case.

9

Conclusion

10

For the foregoing reasons, San Francisco respectfully requests that the Court: (1) declare that

11 Chapters 12H and 12I of San Francisco’s Administrative Code comply with Section 1373, (2) declare

12 that Section 9(a) of the Executive Order is unconstitutional on its face, and (3) enter a nationwide

13 injunction prohibiting all Defendants, including the President, from enforcing Section 9(a) of the

14 Executive Order.

15

16 Dated: October 4, 2017

17

DENNIS J. HERRERA

City Attorney 18

19

By: /s/ Mollie M. Lee

20

MOLLIE M. LEE Deputy City Attorney

21

Attorneys for Plaintiff

22

CITY AND COUNTY OF SAN FRANCISCO

23

24 8 As relevant here, the district court’s discretion includes deciding whether the constitutional
25 violations in the Executive Order can be remedied by an injunction against the named inferior officers, or whether injunctive relief against the President himself is warranted. Previously, the Court declined
26 to issue injunctive relief against the President (PI Order at 48-49), but a subsequent White House statement suggests that the enjoined provision of the Executive Order is still being enforced. See MSJ
27 RJN Exh. U (describing Section 9(a) of the Executive Order and indicating that the Department of Justice is enforcing this section). Statements like this maintain the coercive threat of the Executive
28 Order, and an injunction against all Defendants is necessary to remedy this harm.

CCSF’S Reply to Opposition to Plaintiff’s MSJ;

15

CCSF v. President Trump, et al; Case No. 17-00485

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 Case 3:17-cv-00485-WHO Document 193 Filed 11/02/17 Page 1 of 3

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755 TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 MATTHEW S. LEE, State Bar #295247

8 NEHA GUPTA, State Bar #308864 Deputy City Attorneys

9 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

10 San Francisco, California 94102-4602 Telephone: (415) 554-4748

11 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfgov.org

12 Attorneys for Plaintiff

13 CITY AND COUNTY OF SAN FRANCISCO

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

18 FRANCISCO,

PLAINTIFF CITY AND COUNTY OF SAN

19

Plaintiff,

FRANCISCO’S ADMINISTRATIVE MOTION

TO CONSIDER POST-HEARING

20

vs.

DEVELOPMENTS

21 DONALD J. TRUMP, President of the United Date Filed: January 31, 2017

States, UNITED STATES OF AMERICA,

Trial Date: April 23, 2018

22 ELAINE DUKE, Acting Secretary of United

States Department of Homeland Security,

23 JEFFERSON B. SESSIONS III, Attorney

General of the United States, DOES 1-100,

24

Defendants.

25

26

27

28
Admin. Motion to Consider Post-Hearing Developments; Case No. 17-00485 WHO

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Case 3:17-cv-00485-WHO Document 193 Filed 11/02/17 Page 2 of 3

1

ARGUMENT

2

Plaintiff the City and County of San Francisco respectfully requests that the Court consider two

3 developments that have occurred since the Court heard argument on San Francisco’s Motion for

4 Summary Judgment, or in the Alternative for Partial Summary Judgment, on October 23, 2017

5 (“Summary Judgment Hearing”).

6

First, Defendants filed a Motion for Summary Judgment (“Motion”) on October 31, 2017, in

7 the related case of City and County of San Francisco v. Sessions, Case No. 3-17-cv-04642-WHO

8 (Sessions). The Motion is attached as Exhibit A to the accompanying declaration of Mollie M. Lee

9 (“Lee Decl.”). The Motion is relevant to the federal government’s argument that San Francisco’s

10 claim for declaratory relief regarding 8 U.S.C. § 1373 should be addressed in the Sessions case. Dkt.

11 No. 172 (Opp. to Pltf.’s Mot. for Summary Judgment) at 9; Summary Judgment Hearing Tr. at 12:7-10

12 (“[T]hose issues will be ripe in another lawsuit if the City continues to pursue that grant, and we do

13 agree with the Court’s thinking that it would be better off to address those issues in that case.”). The

14 Motion, however, demonstrates a contrary position—namely, that Sessions should be resolved without

15 adjudicating San Francisco’s Section 1373 claim.

16

Second, San Francisco requests that the Court consider that discovery in this matter has now

17 closed, and Defendants have not sought to take any discovery of San Francisco on matters related to

18 Section 1373, or any other matters. Lee Decl. ¶ 5. This contrasts with Defendants’ assertion that

19 further factual development would assist in resolution of this claim. Dkt. No. 172 at 10. Further, it

20 demonstrates that the Section 1373 claim will most likely be presented to the Court as a purely legal

21 question, regardless of the case in which it is litigated. This accords with Defendants’ consistent

22 treatment of the question of other cities’ compliance with Section 1373: In every instance in which

23 Defendants have sent compliance letters, they have done so purely on the basis of state and local laws

24 and written policies. Dkt. 184-1.

25 //

26 //

27 //

28 //

Admin Motion to Take Notice of Post Hearing

1

Developments; Case No. 17-00485 WHO

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1

CONCLUSION

2

San Francisco respectfully requests that the Court consider two post-hearing developments:

3 Defendants’ filing of a Motion for Summary Judgment in the Sessions case, and Defendants’ decision

4 not to seek any discovery from San Francisco in the instant case.

5

6 Dated: November 2, 2017 7 8 9 10 11 12 13 14

DENNIS J. HERRERA City Attorney JESSE C. SMITH RONALD P. FLYNN YVONNE R. MERÉ CHRISTINE VAN AKEN TARA STEELEY MOLLIE M. LEE SARA J. EISENBERG AILEEN M. McGRATH MATTHEW S. LEE NEHA GUPTA
Deputy City Attorneys

15

16 By: /s/ Mollie M. Lee

17

MOLLIE M. LEE

Deputy City Attorney

18

Attorneys for Plaintiff

19

CITY AND COUNTY OF SAN FRANCISCO

20

21

22

23

24

25

26

27

28

Admin Motion to Take Notice of Post Hearing

2

Developments; Case No. 17-00485 WHO

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 Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 1 of 28

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

12 CITY AND COUNTY OF SAN FRANCISCO,

13

Plaintiff,

14

v.

15 DONALD J. TRUMP, et al.,

16

Defendants.

17

Case No. 17-cv-00574-WHO
Case No. 17-cv-00485-WHO ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

18

INTRODUCTION

19

On April 25, 2017, I entered a preliminary injunction against Section 9(a) of Executive

20 Order 13768, “Enhancing Public Safety in the Interior of the United States,”, 82 Fed. Reg. 8799

21 (Jan. 25, 2017) (the “Executive Order”). Preliminary Injunction Order (“PI Order”)(SF Dkt. No.

22 82), (SC Dkt. No. 98). I concluded that the County of Santa Clara and the City and County of San

23 Francisco had pre-enforcement standing to protect hundreds of millions of dollars of federal grants

24 from the unconstitutionally broad sweep of the Executive Order. The federal government argued

25 for the first time at the hearing for the preliminary injunction that the Executive Order was meant

26 to be far more narrow than I interpreted it, a mere directive to the Department of Homeland

27 Security (“DHS”) and the Department of Justice (“DOJ”) that does not seek to place any new

28

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United States District Court Northern District of California

1 conditions on federal funds. I concluded that this interpretation was not legally plausible in light

2 of the Executive Order’s plain language, as confirmed by the administration’s many statements

3 indicating the Executive Order’s expansive scope. PI Order at 14.

4

A month later, the Attorney General issued a two page memorandum memorializing the

5 DOJ’s interpretation (the “AG Memorandum”) and asked me to reconsider the injunction.

6 Because the AG’s Memorandum does not amend the Executive Order, is not binding on the

7 Executive Branch and suggests an implausible interpretation of Section 9(a), I denied the federal

8 government’s motion on July 20, 2017. Order Denying Reconsideration (SF Dkt. No. 146), (SC

9 Dkt. no. 145).

10

Now on summary judgment, the parties have shown that there are no material facts in

11 dispute concerning the Executive Order. This Order plows no new ground: for the reasons

12 summarized below, and as further described in my earlier Orders, I GRANT the Counties’ 13 motions for summary judgment on the Executive Order and permanently enjoin Section 9(a).1

14

SUMMARY

15

The Executive Order, in addition to outlining a number of immigration enforcement

16 policies, purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do

17 not receive Federal funds, except as mandated by law” and to establish a procedure to make

18 “sanctuary jurisdictions” ineligible to receive federal grants. In two related actions, the County of

19 Santa Clara and the City and County of San Francisco challenge Section 9 of the Executive Order

20 as facially unconstitutional and have brought motions seeking summary judgment. See Cty. of

21 Santa Clara v. Trump, No. 17-cv-0574-WHO; City & Cty. of San Francisco v. Trump, 17-cv-

22 0485-WHO. San Francisco also seeks a declaration that its laws comply with Section 1373.

23

The Counties argue that Section 9(a) violates the separation of powers doctrine enshrined

24 in the Constitution because it improperly seeks to wield congressional spending powers. It is so

25

26 1 This Order addresses San Francisco’s motion only with respect to Count Three of its Complaint.

27

Counts One and Two relate to San Francisco’s claims regarding with 8 U.S.C. § 1373 (“Section 1373”) and its compliance with it, which are better addressed at the time I consider upcoming

28

motions in related litigation. City & Cty. of San Francisco v. Sessions, No. 17-cv-4642-WHO; California v. Sessions, No. 17-cv-4701-WHO (“the related litigation”).

2

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United States District Court Northern District of California

1 overbroad and coercive that even if the President had spending powers, the Executive Order would

2 clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local

3 jurisdictions. It is so vague and standardless that it violates the Fifth Amendment’s Due Process

4 Clause and is void for vagueness. And because it seeks to deprive local jurisdictions of

5 congressionally allocated funds without any notice or opportunity to be heard, it violates the

6 procedural due process requirements of the Fifth Amendment.

7

The federal government responds that the Counties’ cannot demonstrate that Section 9 of

8 the Executive Order is invalid under all circumstances, which the federal government contends is

9 the proper standard for a facial challenge. It also claims that the grant eligibility provision in

10 Section 9(a) is consistent with the Constitution’s separation of powers; that it is a valid exercise of

11 the Spending Power because it is not overly coercive, does not force the Counties to take

12 unconstitutional actions to receive the funds, and the funds bear a relationship to immigration; that

13 the AG Memorandum clarifies the meaning of Section 9(a), eliminating its vagueness (and

14 alternatively, the Counties’ vagueness challenge impermissibly relies on speculation); and, finally,

15 in light of the AG Memorandum, Section 9(a) does not apply to funding in which the County

16 might have a constitutionally protectable interest (and alternatively that the federal government

17 will apply the applicable procedures).

18

Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three

19 grants listed in the AG’s Memorandum. The rest of the Executive Order is broader still,

20 addressing all federal funding. And if there was doubt about the scope of the Executive Order, the

21 President and Attorney General erased it with their public comments. The President has called it

22 “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration

23 enforcement, and his press secretary reiterated that the President intends to ensure that “counties

24 and other institutions that remain sanctuary cites don’t get federal government funding in

25 compliance with the executive order.” The Attorney General has warned that jurisdictions that do

26 not comply with Section 1373 would suffer “withholding grants, termination of grants, and

27 disbarment or ineligibility for future grants,” and the “claw back” of any funds previously

28 awarded. The AG Memorandum not only provides an implausible interpretation of Section 9 (a) 3

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United States District Court Northern District of California

1 but is functionally an “illusory promise” because it does not amend Section 9(a) and does not bind

2 the Executive branch. It does not change the plain meaning of the Executive Order.

3

The Constitution vests the spending powers in Congress, not the President, so the

4 Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth

5 Amendment requires that conditions on federal funds be unambiguous and timely made; that they

6 bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that

7 bears no meaningful relationship to immigration enforcement cannot be threatened merely because

8 a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.

9 Because the Executive Order violates the separation of powers doctrine and deprives the Counties

10 of their Tenth and Fifth Amendment rights, I GRANT the Counties’ motions for summary 11 judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a). 2

12

BACKGROUND

13 I. 14

THE EXECUTIVE ORDER On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

15 “Enhancing Public Safety in the Interior of the United States.” See RJN, Ex. J (“EO”) (SC Dkt.

16 No. 161-10). In outlining the Executive Order’s purpose, Section 1 reads, in part, “Sanctuary

17 jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens

18 from removal from the United States.” EO § 1. Section 2 states that the policy of the executive

19 branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not

20 receive Federal funds, except as mandated by law.” Id. § 2(c).

21

Section 9, titled “Sanctuary Jurisdictions,” lays out this policy in more detail. It reads:

22

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive

branch to ensure, to the fullest extent of the law, that a State, or a

23

political subdivision of a State, shall comply with 8 U.S.C. 1373.

24

(a) In furtherance of this policy, the Attorney General and the

Secretary, in their discretion and to the extent consistent with law,

25

shall ensure that jurisdictions that willfully refuse to comply with 8

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

26

Federal grants, except as deemed necessary for law enforcement

27

28

2 The motions for leave to file amicus briefs at SF Dkt. Nos. 174, 175, 176, 180, 181; and SC Dkt. Nos. 169, 172, 173, 174, 175 are GRANTED.

4

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 5 of 28

United States District Court Northern District of California

purposes by the Attorney General or the Secretary. The Secretary

1

has the authority to designate, in his discretion and to the extent

consistent with law, a jurisdiction as a sanctuary jurisdiction. The

2

Attorney General shall take appropriate enforcement action against

any entity that violates 8 U.S.C. 1373, or which has in effect a

3

statute, policy, or practice that prevents or hinders the enforcement

of Federal law. 4

(b) To better inform the public regarding the public safety threats

5

associated with sanctuary jurisdictions, the Secretary shall utilize the

Declined Detainer Outcome Report or its equivalent and, on a

6

weekly basis, make public a comprehensive list of criminal actions

committed by aliens and any jurisdiction that ignored or otherwise

7

failed to honor any detainers with respect to such aliens.

8

(c) The Director of the Office of Management and Budget is

directed to obtain and provide relevant and responsive information

9

on all Federal grant money that currently is received by any

sanctuary jurisdiction. 10

Id. § 9.

11

Section 3 of the Executive Order, titled “Definitions,” incorporates the definitions listed in

12

8 U.S.C. § 1101. Id. § 3. Section 1101 does not define “sanctuary jurisdiction.” The term is not

13

defined anywhere in the Executive Order. Similarly, neither section 1101 nor the Executive Order

14

defines what it means for a jurisdiction to “willfully refuse to comply” with Section 1373 or for a

15

policy to “prevent[] or hinder[] the enforcement of Federal law.” Id. § 9(a).

16

II. SECTION 1373 17
Section 1373, to which Section 9 refers, prohibits local governments from restricting 18
government officials or entities from communicating immigration status information to ICE. It 19
states in relevant part: 20

(a) In General. Notwithstanding any other provision of Federal,

21

State, or local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any government

22

entity or official from sending to, or receiving from, the Immigration

and Naturalization Service information regarding the citizenship or

23

immigration status, lawful or unlawful, of any individual.

24

(b) Additional Authority of Government Entities. Notwithstanding

any other provision of Federal, State, or local law, no person or

25

agency may prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect to

26

information regarding the immigration status, lawful or unlawful, of

any individual: 27

(1) Sending such information to, or requesting or receiving

28

such information from, the Immigration and Naturalization

5

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United States District Court Northern District of California

1 2 3 4 8 U.S.C. 1373.

Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.

5

In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant

6 programs, the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial 7 Justice Assistance Grant (“JAG”), to compliance with Section 1373.3 This guidance states that all

8 applicants for these two grant programs are required to “assure and certify compliance with all

9 applicable federal statutes, including Section 1373, as well as all applicable federal regulations,

10 policies, guidelines, and requirements.” Id. The DOJ has indicated that the Community Oriented

11 Policing Services Grant (“COPS”) is also conditioned on compliance with Section 1373.

12 III. THE AG MEMORANDUM

13

On May 22, 2017, Attorney General Sessions issued the AG Memorandum, putting

14 forward the DOJ’s “conclusive” interpretation of the Executive Order. See Oppo. Attachment 1

15 (“AG Memorandum”) (SC Dkt. No. 168-1). The AG Memorandum states that the Executive

16 Order does not “purport to expand the existing statutory or constitutional authority of the Attorney

17 General and the Secretary of Homeland Security in any respect” and instead instructs those

18 officials to take action “to the extent consistent with the law.” Id. at 2. It also states that the

19 defunding provision in section 9(a) will be applied “solely to federal grants administered by [DOJ]

20 or [DHS]” and to grants that require the applicant to “certify . . . compliance with federal law,

21 including 8 U.S.C. section 1373, as a condition for receiving an award.” Id. at 1-2. The AG

22 Memorandum also states that DHS and DOJ may only impose these conditions pursuant to

23 “existing statutory or constitutional authority,” and only where “grantees will receive notice of

24 their obligation to comply with section 1373.” Id. at 2.

25

26

3 See 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,

27

2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadzik’s letter as courts may

28

judicially notice information and official documents contained on official federal government websites. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-999 (9th Cir. 2010).

6

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 7 of 28

United States District Court Northern District of California

1

The AG Memorandum purports to clarify the scope of the Executive Order to a more

2 narrow interpretation than what its plain meaning allows. To fix the constitutional problems I

3 have identified, the Executive Order itself would need to be amended. I have concluded that the

4 AG Memorandum amounts to “nothing more than an illusory promise to enforce the Executive

5 Order narrowly.” See Cty. of Santa Clara v. Trump, No. 17–cv–00574, 2017 WL 3086064, at *1

6 (N.D. Cal. July 20, 2017).

7 IV. CIVIL DETAINER REQUESTS

8

An ICE civil detainer request asks a local law enforcement agency to continue to hold an

9 inmate who is in local jail because of actual or suspected violations of state criminal laws for up to

10 48 hours after his or her scheduled release so that ICE can determine if it wants to take that

11 individual into custody. See 8 C.F.R. § 287.7; Marquez Decl., Ex. C at 3 (SC Dkt. No. 160-3).

12 ICE civil detainer requests are voluntary and local governments are not required to honor them.

13 See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled

14 constitutional law clearly establishes that [immigration detainers] must be deemed requests”

15 because any other interpretation would render them unconstitutional under the Tenth

16 Amendment).

17

Several courts have held that it is a violation of the Fourth Amendment for local

18 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because

19 those requests are often not supported by an individualized determination of probable cause that a

20 crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st Cir. 2015);

21 Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or.

22 Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining individuals in

23 response to a civil detainer request and does not indemnify local jurisdictions for potential liability

24 they could face for related Fourth Amendment violations. See 8 C.F.R. § 287.7(e); Marquez Decl.

25 ¶¶ 24-27 & Exs. C-E.

26 V. 27 28

THE COUNTIES’ POLICIES A. Santa Clara’s Policies Santa Clara asserts that its local policies and practices with regard to federal immigration
7

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United States District Court Northern District of California

1 enforcement are at odds with the Executive Order’s provisions regarding Section 1373. SC Mot.

2 at 6. (SC Dkt. No. 151). In 2010, the Santa Clara County Board of Supervisors adopted a

3 Resolution prohibiting Santa Clara employees from using County resources to transmit any

4 information to ICE that was collected in the course of providing critical services or benefits.

5 Marquez Decl. ¶ 28 (SC Dkt. No. 160) & Ex. G (SC Dkt. No. 160-7); Neusel Decl. ¶ 8 (SC Dkt.

6 No. 153); L. Smith Decl. ¶ 7 (SC Dkt. No. 156). The Resolution also prohibits employees from

7 initiating an inquiry or enforcement action based solely on the individual’s actual or suspected

8 immigration status, national origin, race or ethnicity, or English-speaking ability, or from using

9 County resources to pursue an individual solely because of an actual or suspected violation of

10 immigration law. Marquez Decl. ¶ 28 & Ex. G; Neusel Decl. ¶ 8; L. Smith Decl. ¶ 7.

11

Santa Clara also asserts that its policies with regard to ICE civil detainer requests are

12 inconsistent with the Executive Order and the President’s stated immigration enforcement agenda.

13 Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an

14 average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.

15 Neusel Decl. ¶ 10-11. When the County raised concerns about the costs associated with

16 complying with detainer requests and potential civil liability, ICE confirmed that it would not

17 reimburse the County or indemnify it for the associated costs and liabilities. Marquez Decl. ¶¶ 22-

18 26 & Exs. C-E.

19

Santa Clara subsequently convened a task force and adopted a new policy where the

20 County agreed to honor requests for individuals with serious or violent felony convictions, but

21 only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl.

22 ¶¶ 5-6; Marquez Decl. ¶ 27 & Ex. G. ICE has never agreed to reimburse the County for any costs,

23 so since November 2011 the County has declined to honor all ICE detainer requests. Neusel Decl.

24 ¶¶ 5-6; Marquez Decl. ¶ 27 & Ex. G.

25

B. San Francisco’s Policies

26

San Francisco’s sanctuary city policies are contained in Chapters 12H and 12I of its

27 Administrative Code. See S.F. Admin Code § 12. The stated purpose of these laws is “to foster

28 respect and trust between law enforcement and residents, to protect limited local resources, to 8

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1 encourage cooperation between residents and City officials, including especially law enforcement

2 and public health officers and employees, and to ensure community security, and due process for

3 all.” S.F. Admin Code § 12I.1.

4

As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,

5 commissions, officers, and employees from using San Francisco funds or resources to assist in

6 enforcing federal immigration law or gathering or disseminating information regarding an

7 individual’s release status, or other confidential identifying information (which as defined does not

8 include immigration status), unless such assistance is required by federal or state law. Id. § 12H.2.

9 Although Chapter 12H previously prohibited city employees from sharing information regarding

10 individuals’ immigration status, the San Francisco Board of Supervisors removed this restriction

11 in July 2016 due to concerns that the provision violated Section 1373.

12

With regard to civil detainer requests, Chapter 12I prohibits San Francisco law

13 enforcement from detaining an individual, otherwise eligible for release from custody, solely on

14 the basis of a civil immigration detainer request. Id. § 12I.3. It also prohibits local law

15 enforcement from providing ICE with advanced notice that an individual will be released from

16 custody, unless the individual meets certain criteria. Id. Chapter 12I.3.(e) provides that a “[l]aw

17 enforcement official shall not arrest or detain an individual, or provide any individual’s personal

18 information to a federal immigration officer, on the basis of an administrative warrant, prior

19 deportation order, or other civil immigration document based solely on alleged violations of the

20 civil provisions of immigration laws.” Id. § 12I.3.(e). San Francisco explains that it adopted these

21 policies due to concerns that holding people in response to civil detainers would violate the Fourth

22 Amendment and require it to dedicate scarce law enforcement personnel and resources to holding

23 these individuals. Hennessy Decl. ¶¶ 13-14 (SF Dkt. No. 160).

24 VI. THE COUNTIES’ FEDERAL FUNDING

25

A. Santa Clara’s Federal Funding

26

In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal

27 and federally dependent funds, making up roughly 35% of the County’s total revenues. J. Smith

28 Decl. ¶ 6 (SC Dkt. No. 155); Marquez Decl. ¶ 8. This figure includes federal funds provided 9

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1 through entitlement programs.

2

Most of the County’s federal funds are used to provide essential services to its residents.

3 Marquez Decl. ¶¶ 5-8. In support of its motion, the County includes a number of declarations

4 outlining how a loss of any substantial amount of federal funding would force it to make

5 substantial cut backs to safety-net programs and essential services and would require it to lay off

6 thousands of employees. It highlights that the County’s Valley Medical Center, the only public

7 safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which

8 covers up to 70% of its total annual costs. Lorenz Decl. ¶ 6 (SC Dkt. No. 157). A loss of all

9 federal funds would shut down Valley Medical Center and cut off the only healthcare option for

10 thousands of poor, elderly, and vulnerable people in the County. Id. ¶ 8. It further highlights that

11 Santa Clara’s Social Services Agency, which provides various services to vulnerable residents,

12 including child welfare and protection, aid to needy families, and support for disabled children,

13 adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.

14 Menicocci Decl. ¶ 6 (SC Dkt. No. 158). The County’s Public Health Department receives 40% of

15 its budget and $38 million in federal funds. And the County’s Office of Emergency Services,

16 whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives

17 more than two-thirds of its budget from federal funds. Reed Decl. ¶ 8 (SC Dkt. No. 154)

18

In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement

19 federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 160-1) (showing $338 million in

20 federal grants subject to OMB auditing requirements and an additional $227 million in federal

21 grants through the Department of Housing and Urban Development). This represents

22 approximately 11% of the County’s budget.

23

B. San Francisco’s Federal Funding

24

San Francisco’s yearly budget is approximately $9.6 billion; it receives approximately $1.2

25 billion of this from the federal government. Rosenfield Decl. ¶ 10 (SF Dkt. No. 159). San

26 Francisco uses these federal funds to provide vital services such as medical care, social services,

27 and meals to vulnerable residents, to maintain and upgrade roads and public transportation, and to

28 make needed seismic upgrades. Whitehouse Decl. ¶15 (SF Dkt. No. 167). Losing all, or a 10

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1 substantial amount, of federal funds would have significant effects on core San Francisco

2 programs. Rosenfield Decl. ¶ 42. Federal funds make up 30% of the budget for San Francisco’s

3 Department of Emergency Management, id. ¶¶ 28-31; 33% of the budget for San Francisco’s

4 Human Services Agency, id. ¶¶ 16-21; and 40% of the budget for San Francisco’s Department of

5 Public Health, id. ¶¶ 22-27.

6

Approximately 20% of the federal funds, or $240 million, are from federal grants. Id. ¶ 43.

7 San Francisco also receives $800 million each year in federal multi-year grants, primarily for

8 public infrastructure projects. Whiteside Decl. ¶ 13.

9

San Francisco must adopt a balanced budget for each fiscal year beginning on July 1.

10 Whitehouse Decl. ¶16. Under local law, the Mayor must submit a balanced budget to the Board of

11 Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to

12 create a budget reserve to account for the potential loss of significant funds. Id. ¶¶ 5, 9. Any

13 money placed in the budget reserve would not be available to be used for other programs or

14 services in the coming fiscal year. Id. ¶ 9.

15

DISCUSSION

16 I. 17

JUSTICIABILITY The federal government argues that the Counties’ claims against the Executive Order are

18 not justiciable because the Counties cannot establish standing and because their claims are not ripe

19 for review. It also contends that the claims are non-justiciable because the Executive Order is

20 merely an internal directive that does not directly affect the Counties. These principles of

21 justiciability go to whether this court has jurisdiction to hear the Counties’ claims. I conclude that

22 the Executive Order carries the weight of the law, the Counties have demonstrated Article III

23 standing to challenge the Executive Order, and their claims are ripe for review.

24

The federal government raises three primary arguments against the justiciability of the

25 Counties’ claims. First, it asserts that the Counties have not established a concrete risk of losing

26 any funds under Section 9(a). Second, it argues that the Counties cannot establish the “concrete”

27 injury necessary for standing nor “concrete” impact necessary for ripeness because neither the

28 President nor the Secretary of DHS has disagreed with the “plan” set forth by the Attorney 11

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1 General in the AG Memorandum. Lastly, the federal government argues that because the

2 Executive Order is merely a “internal directive,” it does not affect the Counties.

3

The federal government’s arguments are nearly identical to those I have rejected before. It

4 does not identify any change in the law or alternative explanation that would change my prior

5 analysis in the PI Order and Order Denying Reconsideration. I address its arguments in turn,

6 repeating my previous conclusions. All of the Counties’ claims are justiciable.

7

A. The Counties Establish a Concrete Risk of Losing Funds

8

The federal government repeatedly indicated its intent to enforce the Executive Order in its

9 public statements and through its actions. Although the defunding provision was not enforced

10 against any jurisdiction prior to the nationwide injunction, the President and other members of the

11 administration have made numerous statements reaffirming the federal government’s intent to

12 enforce the Executive Order and to use the threat of withholding federal funds as a tool to coerce

13 states and local jurisdictions to change their policies.

14

For example, on February 5, 2017, after signing the Executive Order, President Trump

15 confirmed that he was willing and able to use “defunding” as a “weapon” so that sanctuary cities

16 would change their policies. See RJN Ex. H (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with

17 President Donald J. Trump) at 4 (SF Dkt. No. 163-9) (“I don’t want to defund anybody. I want to

18 give them the money they need to properly operate as a city or a state. If they’re going to have 19 sanctuary cities, we may have to do that. Certainly that would be a weapon.”).4 Attorney General

20 Sessions confirmed the federal government’s intent to enforce the defunding provisions, stating

21 that if jurisdictions do not comply with Section 1373, such violations would result in “withholding

22 grants, termination of grants, and disbarment or ineligibility for future grants,” and that the federal

23 government would seek to “claw back any funds awarded to a jurisdiction that willfully violates

24 1373.” See RJN, Ex. I (“Sessions Press Conference”) at 2 (SF Dkt. No. 163-9).

25

The statements of the President and the Attorney General repeatedly indicated an intent to

26

27

4 I take judicial notice of President Trump’s interview statements as the veracity of these statements “can be accurately and readily determined from sources whose accuracy cannot

28 reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

12

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1 defund sanctuary jurisdictions in compliance with the Executive Order. Though such explicit

2 statements have been scant since I entered the preliminary injunction, the Counties’ concerns that

3 the federal government will enforce the defunding provision are well supported by the federal

4 government’s public statements and actions, all of which are consistent with enforcing the 5 Executive Order.5

6

In addition to demonstrating that the federal government is likely to enforce the Executive

7 Order, the Counties have shown that the federal government is particularly likely to target them

8 and the funds on which they rely. In the February 5, 2017 interview, President Trump specifically

9 threatened to defund California, stating: “I’m very much opposed to sanctuary cities. They breed

10 crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of

11 money to California . . . California in many ways is out of control.” See RJN, Ex. H at 4. The

12 Counties have established that they both receive large percentages of their federal funding through

13 the State of California and that they would suffer injury if California was “defunded.” ICE has

14 identified California, Santa Clara County, and San Francisco as jurisdictions with policies that

15 “Restrict Cooperation with ICE” and has identified Santa Clara County Main Jail and San

16 Francisco County Jail as two of eleven detention centers with the “highest volume of detainers 17 issued” that “do not comply with detainers on a routine basis.” RJN, Ex. D (SF Dkt. No. 163-3).6

18

The President and the Attorney General have also repeatedly held up San Francisco as an

19 example of how sanctuary policies threaten public safety. In an op-ed recently published in the

20 San Francisco Chronicle, the Attorney General wrote that “Kathryn Steinle might be alive today if

21 she had not lived in a ‘sanctuary city’” and implored “San Francisco and other cities to re-evaluate

22

23 5 I take judicial notice under Fed. R. Evid. § 201 (b)(2) that the DOJ notified the Counties on

24

November 15, 2017 that they “have preliminarily been found to have laws, policies, or practices that violate 8 U.S.C. 1373.” Second Supplement al Request for Judicial Notice in Support of the

25

County of Santa Clara’s Motion for Summary Judgment, Exh. C, Dkt. No. 181. This underscores the concrete risk and injury faced by the Counties.

26 6 I take judicial notice of ICE’s identification of California, Santa Clara County, and San Francisco

27

as jurisdictions with policies that “Restrict Cooperation with ICE” as matters of public record. See Interstate Nat. Gas. Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953) (judicially noticing

28 federal government agency records and reports).

13

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1 these policies.” RJN, Ex. R (SF Dkt. No. 163-18).7 In his statements to federal, state, and local

2 law enforcement on July 12, 2017, Attorney General Sessions referenced the tragic death of Ms.

3 Steinle and noted that her killer “admitted that one reason he was in San Francisco that day was

4 that he knew the city had these policies in place” RJN, Ex. T (“Sessions Press Release”) at 2 (Dkt.

5 No. 163-20). These statements indicate not only the belief that San Francisco is a “sanctuary

6 jurisdiction” but that its policies are particularly dangerous and in need of change. They also

7 reveal a choice by the administration to hold up San Francisco as an exemplar of a sanctuary

8 jurisdiction.

9

The federal government’s specific criticisms of San Francisco, Santa Clara, and California

10 support a well-founded fear that San Francisco and Santa Clara will face enforcement directly

11 under the Executive Order, or could be subject to defunding indirectly through enforcement

12 against California. San Francisco and Santa Clara have shown that their current practices and

13 policies are targeted by the Executive Order. They have demonstrated that the federal government

14 has repeatedly indicated its intent to enforce it. And they have established that the federal

15 government has specifically highlighted Santa Clara and San Francisco as jurisdictions with

16 sanctuary policies. On these facts, Santa Clara and San Francisco have demonstrated that the

17 “threat of enforcement [is] credible, not simply imaginary or speculative.” Id. (internal quotation

18 marks omitted). Because the enforcement of Section 9(a) involves defunding, this establishes the

19 Counties’ concrete risk of losing funds.

20

B. The Counties Show Concrete Injury and Concrete Impact

21

The Counties assert that the Executive Order threatens to penalize them for failing to

22 comply with Section 1373 and for failing to honor detainer requests by withholding all federal

23 funds, or at least all federal grants. Section 9(a) does not threaten all federal funding, but it does

24 include all federal grants, which make up a significant part of the Counties’ budgets. This

25 threatened injury meets Article III’s standing requirements. A “loss of funds promised under

26

27 7 I take judicial notice of Attorney General Sessions’s statements in his op-ed as the veracity of

28

these statements “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

14

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1 federal law [] satisfies Article III’s standing requirement.” Organized Village of Kake v. U.S.

2 Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015).

3

The Counties explained that the need to mitigate a potential sudden loss of federal funds

4 wreaked havoc with their budgeting processes prior to issuance of the preliminary injunction.

5 They could not make informed decisions about whether to keep spending federal funds on needed

6 services for which they may not be reimbursed; they were forced to make contingency plans to

7 deal with a potential loss of funds, including placing funds in a budget reserve in lieu of spending

8 that money on needed programs; and the obligation to mitigate potential harm to their residents

9 and drastic cuts to services could ultimately compel them to change their local policies to comply

10 with what they believe to be an unconstitutional Executive Order. The potential loss of all federal

11 grants creates a contingent liability large enough to have real and concrete impacts on the

12 Counties’ ability to budget and plan for the future. As discussed in more detail below, the

13 Counties demonstrated that they are suffering a present “injury [] inflicted by the mere existence

14 and threatened enforcement of the [Executive Order].” Village of Euclid, 272 U.S. at 385. Along

15 with the threatened loss of funds, this may also establish Article III standing.

16

A sudden loss of grant funding would have another effect. The Counties receive large

17 portions of their federal grants through reimbursement structures; the Counties first spend their

18 own money on particular services and then receive reimbursements from the federal government

19 based on the actual services provided. Marquez Decl. ¶ 16. Because these funds are spent on an

20 ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal

21 reimbursements for services already provided. A sudden cut to funding, including a cut to these

22 reimbursements, could place them immediately in significant debt. A sudden and unanticipated

23 cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make

24 even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on

25 budget. Whitehouse Decl. ¶ 15.

26

San Francisco explains that a mid-year loss of only $120 million in federal funding would:

27 require the City to make significant cuts to critical services and would result in reductions in the

28 numbers of first responders, such as police officers, firefighters, and paramedics; require severe 15

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1 cuts to the City’s MUNI transportation system; threaten the Mayor’s program to end chronic

2 veterans’ homelessness by 2018; and likely require cuts to social services, such as senior meals,

3 safety net services for low-income children, and domestic violence prevention services. Id. ¶ 10.

4 Because federal grants support key services, San Francisco asserts that, without clarity about the

5 funds the Executive Order could withhold or claw back, it would have needed to allocate millions

6 of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of significant funds

7 during the 2017 fiscal year. Id. ¶ 6, 12. Any funds placed in a reserve fund would not be available

8 to fund other City programs and services for the 2017 fiscal year, which would have resulted in a

9 dollar-for-dollar reduction in services the City is able to provide its residents. Id. ¶¶ 8-10.

10

Santa Clara asserts that the budgetary uncertainty put it in an “untenable position.”

11 Marquez Decl. ¶ 4. It explained that Santa Clara’s budget for the fiscal year is in place and was

12 developed based on careful weighing of various factors, including anticipated revenues, specific

13 service needs, salary and benefits for the County’s 19,000 employees, and the County’s fiscal

14 priorities. Id. ¶ 13. Because Santa Clara operates federally funded programs on a daily basis, and

15 incurs costs in anticipation that it will be reimbursed, its ability to provide these services depends

16 on the County having some confidence that it will continue to receive the federal reimbursements

17 and funds on which it depends. With the Executive Order’s unclear and broad language

18 threatening a significant cut to funding, the County did not know “whether to (1) continue

19 incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal

20 government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or

21 (3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law

22 enforcement and other resources to assist the federal government in its immigration enforcement

23 efforts.” Id. ¶ 12.

24

The potential loss of funds also impacts the Counties’ potential borrowing power and

25 financial strength; San Francisco noted that it had received inquiries from credit rating agencies

26 about the Executive Order and its impact on San Francisco’s finances. Rosenfield Decl. ¶ 46-47.

27 This budget uncertainty is not abstract. It has caused the Counties real and tangible harms. They

28 have adequately demonstrated that budgetary uncertainty of the type threatened by the Executive 16

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1 Order constitutes a sufficiently concrete injury and demonstrates a sufficiently concrete impact for

2 purposes of justiciability.

3

C. The Executive Order is Not an Internal Directive

4

The federal government argues that the Executive Order does not change the law, but

5 merely directs the Attorney General and Secretary to enforce existing law. It cites Chen v.

6 Schiltgen, No. C-94-4094-MHP, 1995 WL 317023, at *5 (N.D. Cal. May 29, 1995), for the

7 proposition that the Executive Order “direct[s] the exercise of powers statutorily delegated to

8 executive branch officials.” Oppo. at 8. But the Executive Order is not readily susceptible to the

9 federal government’s narrow interpretation. Indeed, “[t]o read [the Executive Order] as the

10 federal government desires requires rewriting, not just reinterpretation.” U.S. v. Stevens, 559 U.S.

11 460, 481 (2010).

12

The federal government attempts to read out all of Section 9(a)’s unconstitutional

13 directives to render it an ominous, misleading, and ultimately toothless threat. It urges that all it

14 does is direct the Attorney General and Secretary to enforce existing grant conditions “consistent

15 with law.” But in reality, the defunding provision instructs the Attorney General and the Secretary

16 to do something that only Congress has the authority to do – place new conditions on federal

17 funds. If Section 9(a) does not direct the Attorney General and Secretary to place new conditions

18 on federal funds, then it only authorizes them to do something they already have the power to do,

19 which is to enforce existing grant requirements; effectively, the federal government argues that

20 Section 9(a) is “valid” and does not raise constitutional issues as long as it does nothing at all. But

21 a construction so narrow that it renders a legal action legally meaningless cannot possibly be

22 reasonable and is clearly inconsistent with the Executive Order’s broad intent.

23

The federal government’s construction requires a complete rewriting of the Executive

24 Order’s language and does not retain any of Section 9(a)’s legal effect. The Executive Order, as

25 written, is not merely an internal directive but an order intended to have the full force of the law.

26 II. CONSTITUTIONALITY OF THE EXECUTIVE ORDER

27

A. The Executive Order Violates the Separation of Powers

28

The Counties argue that the Executive Order is unconstitutional because it seeks to wield

17

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1 powers that belong exclusively to Congress, the spending powers. The federal government

2 contends that (i) the grant eligibility provision in Section 9(a) is consistent with separation of

3 powers; (ii) authority to impose at least some conditions is inherent in the statutory authority to

4 administer a grant program; and (iii) the Counties have failed to establish that the Executive Order

5 would be unconstitutional in all its applications.

6

The parties disagree about the standard for a facial challenge. Relying on United States v.

7 Salerno, 481 U.S. 739, 745 (1987), the federal government argues that the Counties must

8 demonstrate that Section 9(a) is invalid under all circumstances. SC Oppo. at 11 (SC Dkt. No.

9 168); SF Oppo. at 21 (SF Dkt. No. 165). Santa Clara asserts, and I agree, that a proper facial

10 challenge can be brought when the challenged law cannot be narrowly construed by the courts or

11 narrowly interpreted as to avoid constitutional questions. Jackson v. City & Cty. Of San

12 Francisco, 746 F.3d 953, 963 (9th Cir. 2014). I have found that the Executive Order cannot be

13 narrowly interpreted or construed to avoid constitutional questions, and the federal government

14 makes no argument regarding the separation of powers principles other than its misguided

15 assertion regarding the standard for a facial challenge. The Executive Order violates the

16 Constitution’s separation of powers principles.

17

The constitutional principle at issue is pretty basic. Article I of the Constitution grants

18 Congress the federal spending powers. See U.S. Const. art. I, § 8, cl. 1. “Incident to this power,

19 Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the

20 power ‘to further broad policy objectives by conditioning receipt of federal moneys upon

21 compliance by the recipient with federal statutory and administrative directives.’” South Dakota

22 v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

23 (emphasis added). While the President may veto a Congressional enactment under the

24 Presentment Clause, he must “either ‘approve all the parts of a Bill, or reject it in total.’” Clinton

25 v. City of New York, 524 U.S. 417, 438 (1998) (quoting 33 Writings of George Washington 96 (J.

26 Fitzpatrick ed., 1940)). He cannot “repeal[] or amend[] parts of duly enacted statues” after they

27 become law. Id. at 439.

28

This is true even if Congress has attempted to expressly delegate such power to the

18

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1 President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,

2 which sought to grant the President the power to cancel particular direct spending and tax benefit

3 provisions in bills, was unconstitutional because it ran afoul of the “ ‘finely wrought’ procedures

4 commanded by the Constitution” for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.

5 919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to

6 spend appropriated funds, any delegation and discretion is cabined by these constitutional

7 boundaries.

8

After a bill becomes law, the President is required to “take Care that the Law be faithfully

9 executed.” See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give the President

10 discretion in allocating funds, the President has no constitutional authority to withhold such funds

11 and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.

12 See City of New York, 524 U.S. at 439; U.S. Const. art. I, § 8, cl. 1. Further, “[w]hen the President

13 takes measures incompatible with the expressed or implied will of Congress, his power is at its

14 lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

15 concurring). Congress has intentionally limited the ability of the President to withhold or

16 “impound” appropriated funds and has provided that the President may only do so after following

17 particular procedures and after receiving Congress’s express permission. See Impoundment

18 Control Act of 1974, 2 U.S.C. §§ 683 et seq.

19

The Executive Order runs afoul of this fundamental constitutional structure. The President

20 does not have the power to place conditions on federal funds and, obviously, cannot delegate this

21 power. But that is what Section 9(a) purports to do, to give the Attorney General and the

22 Secretary the power to place a new condition on federal funds (compliance with Section 1373) not

23 authorized by Congress.

24

Section 9(a) is particularly problematic because Congress has repeatedly declined to

25 broadly condition federal funds or grants on compliance with Section 1373 or other federal

26 immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of

27 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

28 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary 19

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1 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the President’s power

2 “at its lowest ebb.” Youngstown, 343 U.S. at 637. The Executive Order’s attempt to place new

3 conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power

4 and is a violation of the Constitution’s separation of powers principles.

5

B. The Counties’ Spending Clause Claims

6

The Counties also argue that, even if the President had the spending power, the Executive

7 Order would be unconstitutional under the Tenth Amendment because it exceeds those powers.

8 Relying largely on the language in the AG Memorandum, the federal government counters that: (i)

9 the Counties do not demonstrate that Section 9(a) is clearly coercive; (ii) Section 9(a) does not

10 induce the Counties to violate any applicable constitutional or statutory limitation; (iii) the AG

11 Memorandum eliminated the possibility of Section 9(a) being applied in arenas unrelated to

12 immigration; and (iv) the AG Memorandum clarifies how the provisions of Section 9(a) will be

13 applied. As I explained in the Order Denying Reconsideration, the AG Memorandum does not

14 resolve the Executive Order’s constitutional issues or alter the constitutional analysis, and there is

15 no need to discuss further those latter two arguments.

16

Regarding the first two arguments, Congress has significant authority to encourage policy

17 through its spending power. The Supreme Court, however, has articulated a number of limitations

18 to the conditions Congress can place on federal funds. The Executive Order likely violates at least

19 three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds

20 have already been accepted; (2) there must be a nexus between the federal funds at issue and the

21 federal program’s purpose; and (3) the financial inducement cannot be coercive.

22

1. Unambiguous Requirement

23

When Congress places conditions on federal funds, “it must do so unambiguously” so that

24 state and local jurisdictions contemplating whether to accept such funds can “exercise their choice

25 knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 203 (internal

26 quotation marks omitted). Because states must opt-in to a federal program willingly, fully aware

27 of the associated conditions, Congress cannot implement new conditions after-the-fact. See Nat’l

28 Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602-04 (2012). “The legitimacy of 20

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1 Congress’s exercise of the spending power thus rests on whether the state voluntarily and

2 knowingly accepts the terms of the contract” at the time Congress offers the money. Id. at 2602.

3

The Executive Order purports retroactively to condition all “federal grants” on compliance

4 with Section 1373. As this condition was not an unambiguous condition that the states and local

5 jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it

6 cannot be imposed now by the Executive Order. Moreover, the Executive Order’s language refers

7 to all federal grants but the DOJ says it only applies to three grants issued through the

8 Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties

9 cannot voluntarily and knowingly choose to accept the conditions on such funds.

10

Finally, as discussed below in Section II.D., the Executive Order’s vague language does

11 not make clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid

12 its penalties. The unclear and untimely conditions in the Executive Order fail the “unambiguous”

13 restriction because the Executive Order does not make clear to states and local governments what

14 funds are at issue and what conditions apply to those funds, making it impossible for them to

15 “voluntarily and knowingly accept[] the terms of the contract.” NFIB, 132 S. Ct. at 2602.

16

2. Nexus Requirement

17

The conditions placed on congressional spending must have some nexus with the purpose

18 of the implicated funds. “Congress may condition grants under the spending power only in ways

19 reasonably related to the purpose of the federal program.” Dole, 483 U.S. at 213. This means that

20 funds conditioned on compliance with Section 1373 must have some nexus to immigration

21 enforcement.

22

The Executive Order’s attempt to condition all federal grants on compliance with Section

23 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and

24 most categories of federal funding, such as funding related to Medicare, Medicaid, transportation,

25 child welfare services, immunization and vaccination programs, and emergency preparedness.

26 The Executive Order inverts the nexus requirement, directing the Attorney General and Secretary

27 to cut off all federal grants to “sanctuary jurisdictions” but giving them discretion to allow

28 “sanctuary jurisdictions” to receive grants “deemed necessary for law enforcement purposes.” EO 21

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 22 of 28

United States District Court Northern District of California

1 § 9(a). As the subset of grants “deemed necessary for law enforcement purposes” likely includes

2 any federal funds related to immigration enforcement, the Executive Order expressly targets for

3 defunding grants with no nexus to immigration enforcement at all. This is the precise opposite of

4 what the nexus test requires.

5

3. Not Coercive Requirement

6

Finally, Congress cannot use the spending power in a way that compels local jurisdictions

7 to adopt certain policies. Congress cannot offer “financial inducement . . . so coercive as to pass

8 the point at which pressure turns to compulsion.” Dole, 483 U.S. at 211 (internal quotation marks

9 omitted). Legislation that “coerces a State to adopt a federal regulatory system as its own” “runs

10 contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602. States must have a “legitimate

11 choice whether to accept the federal conditions in exchange for federal funds.” Id. at 2602-03.

12

In NFIB, the Supreme Court concluded that the Affordable Care Act’s threat of denying

13 Medicaid funds, which constituted over 10 percent of the State’s overall budget, was

14 unconstitutionally coercive and represented a “gun to the head.” Id. at 2604. The Executive Order

15 threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on

16 which the Counties rely. The threat is unconstitutionally coercive.

17

C. The Counties’ Tenth Amendment Claim

18

The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to

19 conscript states and local jurisdictions into carrying out federal immigration law. The federal

20 government does not specifically address the constitutional argument. Instead, it asserts that in

21 order to successfully bring a facial challenge, San Francisco must demonstrate that the

22 “appropriate enforcement action” provision of Section 9(a) would violate the Tenth Amendment in

23 all of its applications. As previously discussed, this argument misinterprets the facial challenge 24 standard.8

25

“The Federal government may not compel the States to enact or administer a federal

26

27

8 This discussion of the Tenth Amendment only addresses the Executive Order’s enforcement threat against all federal grants. I will consider the narrower issues presented concerning Section

28

1373 and specific grant programs involving San Francisco and the State of California in the related litigation.

22

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 23 of 28

United States District Court Northern District of California

1 regulatory program.” New York, 505 U.S. at 188. “The Federal government may neither issue

2 directives requiring the States to address particular problems, nor command the States’ officers, or

3 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz

4 v. United States, 521 U.S. 898, 935 (1997). “That is true whether Congress directly commands a

5 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.”

6 NFIB, 132 S. Ct. at 2602.

7

The Counties have demonstrated that under their reasonable interpretation, the Executive

8 Order equates “sanctuary jurisdictions” with “any jurisdiction that ignored or otherwise failed to

9 honor any detainers” and therefore places such jurisdictions at risk of losing all federal grants. See

10 EO § 9(b). The Counties have shown that losing all of their federal grant funding would have

11 significant effects on their ability to provide services to their residents and that they may have no

12 legitimate choice but to accept the federal government’s conditions in exchange for those funds.

13

To the extent the Executive Order seeks to condition all federal grants on honoring civil

14 detainer requests, it is likely unconstitutional under the Tenth Amendment because it seeks to

15 compel the states and local jurisdictions to enforce a federal regulatory program through coercion.

16 It directs the Attorney General to “take appropriate enforcement action against any entity that

17 violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders

18 the enforcement of Federal law.” EO § 9(a). Although the Executive Order provides no further

19 clarification on what this “enforcement” might entail or what policies might “hinder[] the

20 enforcement of Federal law,” Attorney General Sessions, who is tasked with implementing this

21 provision, has equated failure to honor civil detainer requests with policies that “frustrate th[e]

22 enforcement of immigration laws.” See Sessions Press Conference at 2. Given the Attorney

23 General’s apparent interpretation of Section 1373, the Executive Order threatens “enforcement

24 action” against any jurisdiction that refuses to comply with detainer requests or otherwise fails to

25 enforce federal immigration law. While this threat of “enforcement” is left vague and

26 unexplained, “enforcement” by its own definition means to “compel[] compliance.” See BLACK’S

27 LAW DICTIONARY 645 (10th ed. 2014) (defining “enforcement” as “The act or process of

28 compelling compliance with a law, mandate, command, decree, or agreement.”). By seeking to 23

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 24 of 28

United States District Court Northern District of California

1 compel states and local jurisdictions to honor civil detainer requests by threatening enforcement

2 action, the Executive Order violates the Tenth Amendment’s provisions against conscription.

3

The Supreme Court has repeatedly held that, “The Federal government cannot compel the

4 States to enact or administer a federal regulatory program.” New York v. United States, 505 U.S.

5 144, 188 (1992). The federal government cannot command them to adopt certain policies, id. at

6 188, command them to carry out federal programs, Printz, 521 U.S. at 935, or otherwise to

7 “coerce them into adopting a federal regulatory system as their own,” NFIB, 132 S. Ct. at 2602.

8 The Executive Order uses coercive means in an attempt to force states and local jurisdictions to

9 honor civil detainer requests, which are voluntary “requests” precisely because the federal

10 government cannot command states to comply with them under the Tenth Amendment. The

11 Executive Order attempts to use coercive methods to circumvent the Tenth Amendment’s direct

12 prohibition against conscription. While the federal government may incentivize states to adopt

13 federal programs voluntarily, it cannot use means that are so coercive as to compel their

14 compliance. The Executive Order’s threat to pull all federal grants from jurisdictions that refuse

15 to honor detainer requests or to bring “enforcement action” against them violates the Tenth

16 Amendment’s prohibitions against commandeering.

17

D. Santa Clara’s Fifth Amendment Vagueness Claim

18

The Counties assert that the Executive Order is unconstitutionally vague in violation of the

19 Fifth Amendment’s Due Process Clause. The federal government responds, first, that the

20 Executive Order is an internal directive that does not have a direct effect on Santa Clara and so

21 Santa Clara needs no notice. SC Oppo. at 18. This argument holds no weight; as discussed

22 before, the Executive Order is not merely an internal directive. See PI Order at 12-16;

23 Reconsideration Order at 15; infra Section I.C. Next, it argues that the AG Memorandum

24 “authoritatively clarifies” the terms and makes it clear which federal grants will be affected by the

25 Executive Order. SC Oppo. at 18. As previously explained, the AG Memorandum is not

26 authoritative and does not amend the Executive Order or bind the rest of the Executive Branch,

27 and it does not affect the constitutional analysis.

28

A law is unconstitutionally vague and void under the Fifth Amendment if it fails to make

24

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 25 of 28

United States District Court Northern District of California

1 clear what conduct it prohibits and if it fails to lay out clear standards for enforcement. See

2 Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To satisfy due process, courts insist that

3 laws (1) “give the person of ordinary intelligence a reasonable opportunity to know what is

4 prohibited, so that he may act accordingly” and (2) “provide explicit standards for those who apply

5 them.” Id. The Executive Order does not meet either of these requirements.

6

The Executive Order does not make clear what conduct might subject a state or local

7 jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to

8 determine how to modify their conduct, if at all, to avoid the Executive Order’s penalties. The

9 Executive Order directs the Attorney General and Secretary to ensure that jurisdictions that

10 “willfully refuse to comply” with Section 1373, “sanctuary jurisdictions,” are not eligible to

11 receive federal grants. Past DOJ guidance and various court cases interpreting Section 1373 have

12 not reached consistent conclusions as to what Section 1373 requires. In the face of conflicting

13 guidance, with no clear standard from the federal government, jurisdictions do not know how to

14 avoid the Executive Order’s defunding penalty.

15

Further, because the Executive Order does not clearly define “sanctuary jurisdictions,” the

16 conduct that will subject a jurisdiction to defunding under the Executive Order is not fully

17 outlined. In addition, the Executive Order directs the Attorney General to take “appropriate

18 enforcement action” against any jurisdiction that willfully refuses to comply with Section 1373 or

19 otherwise has a policy or practice that “hinders the enforcement of Federal law.” This provision

20 vastly expands the scope of the Executive Order. What does it mean to “hinder” the enforcement

21 of federal law? What federal law is at issue: immigration laws? All federal laws? The Executive

22 Order offers no clarification. Although the AG Memorandum purports to clarify these op en

23 questions, it cannot “authoritatively” do so because it does not carry the force of law. It cannot

24 address these constitutional failings of the Executive Order.

25

The Executive Order also fails to provide clear standards to the Secretary and the Attorney

26 General to prevent “arbitrary and discriminatory enforcement.” Id. The Executive Order gives the

27 Secretary discretion to designate jurisdictions as “sanctuary jurisdictions” to the extent consistent

28 with law. But there are no laws, besides the Executive Order, outlining what a sanctuary 25

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 26 of 28

United States District Court Northern District of California

1 jurisdiction is, leaving the Secretary with unfettered discretion and the Executive Order’s vague

2 language to make “sanctuary jurisdiction” designations. Similarly, the Executive Order directs the

3 Attorney General to take “appropriate enforcement action” against any jurisdiction that “hinders

4 the enforcement of Federal law.” This expansive, standardless language creates huge potential for

5 arbitrary and discriminatory enforcement, leaving the Attorney General to figure out what

6 “appropriate enforcement action” might entail and what policies and practices might “hinder[] the

7 enforcement of Federal law.” This language is “so standardless that it authorizes or encourages

8 seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

9

The Executive Order gives the Counties no clear guidance on how to comply with its

10 provisions or what penalties will result from non-compliance, and its standardless guidance and

11 enforcement provisions are also likely to result in arbitrary and discriminatory enforcement. It

12 does not “give the person of ordinary intelligence a reasonable opportunity to know what is

13 prohibited, so that he may act accordingly.” Gaynard, 408 U.S. at 108. Section 9(a) is void for

14 vagueness under the Fifth Amendment.

15

E. Santa Clara’s Fifth Amendment Procedural Due Process Claim

16

The Counties assert that the Executive Order fails to provide them with procedural due

17 process in violation of the Fifth Amendment. Again relying on the AG Memorandum, the federal

18 government argues that Section 9(a) does not apply to funding “in which the County might have a

19 constitutionally protectable property interest.” SC Oppo. at 19.

20

To have a legitimate property interest, a person “must have more than a unilateral

21 expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v.

22 Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement

23 to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132

24 S. Ct. at 2602 (“The legitimacy of Congress’ power to legislate under the spending power [] rests

25 on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”). The

26 Counties have a legitimate property interest in federal funds that Congress has already

27 appropriated and that the Counties have accepted.

28

The Executive Order purports to make the Counties ineligible to receive these funds

26

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 27 of 28

United States District Court Northern District of California

1 through a discretionary and undefined process. The Executive Order directs the Attorney General

2 and Secretary to designate various states and local jurisdictions as “sanctuary jurisdictions,”

3 ensure that such jurisdictions are “not eligible” to receive federal grants, and “take enforcement

4 action” against them. EO § 9 (a). It does not direct the Attorney General or Secretary to provide

5 “sanctuary jurisdictions” with any notice of an unfavorable designation or impending cut to

6 funding. And it does not set up any administrative or judicial procedure for states and local

7 jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against

8 them under the Executive Order. This complete lack of process violates the Fifth Amendment’s

9 due process requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (“The essence of due

10 process is the requirement that a person in jeopardy of serious loss be given notice of the case

11 against him and opportunity to meet it.”) (internal alterations and quotations omitted).

12

The Counties have demonstrated that the Executive Order has caused and will cause them

13 constitutional injuries by violating the separation of powers doctrine and depriving them of their

14 Tenth and Fifth Amendment rights. Accordingly, the Counties’ motions for summary judgment

15 are GRANTED with respect to Section 9(a) of the Executive Order.

16 III. SAN FRANCISCO’S 1373 CHALLENGE

17

San Francisco also seeks summary judgment for its claim for declaratory relief that its laws

18 comply with Section 1373. The federal government asserts that San Francisco’s claim is

19 nonjusticiable. Further, if the claim is justiciable, the federal government argues that San

20 Francisco’s ordinances conflict with Section 1373.

21

San Francisco has brought a separate lawsuit against the federal government’s imposition

22 of grant conditions on the Edward Byrne Memorial Justice Assistance Grant Program. See City &

23 Cty. of San Francisco v. Sessions, No. 17-cv-4642-WHO. And the State of California brings its

24 own challenge to the federal government’s interpretation of Section 1373. See State of California v

25 Sessions, No. 17-cv-4701 WHO. I will consider San Francisco’s motion for summary judgment 26 on Counts One and Two when I address the related issues in the related litigation. 9

27

28

9 Given these conclusions, San Francisco’s Administrative Motion to Consider Post-Hearing Developments will be considered at a later date.

27

Case 3:17-cv-00485-WHO Document 200 Filed 11/20/17 Page 28 of 28

United States District Court Northern District of California

1

CONCLUSION

2

The Counties have demonstrated that the Executive Order has caused and will cause them

3 constitutional injuries by violating the separation of powers doctrine and depriving them of their

4 Tenth and Fifth Amendment rights. Accordingly, the Counties’ motions for summary judgment

5 are GRANTED regarding Section 9(a). The defendants are permanently enjoined from enforcing

6 Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.

7 Because Section 9(a) is unconstitutional on its face, and not simply in its application to the

8 plaintiffs here, a nationwide injunction against the defendants other than President Trump is

9 appropriate. See California v. Yamasaki, 442 U.S. 682, 702 (1979)(“[T]he scope of injunctive

10 relief is dictated by the extent of the violation established, not by the geographical extent of the

11 plaintiff.”); Washington v. Trump, 847 F.3d 1151, 1161-67 (9th Cir. 2017) (affirming nationwide

12 injunction against executive travel ban order).

13

IT IS SO ORDERED.

14 Dated: November 20, 2017

15

16

17

William H. Orrick United States District Judge

18

19

20

21

22

23

24

25

26

27

28 28

 
 Case 3:17-cv-00485-WHO Document 201 Filed 11/29/17 Page 1 of 4

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 MATTHEW S. LEE, State Bar #295247

8 NEHA GUPTA, State Bar #308864

Deputy City Attorneys

9 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

10 San Francisco, California 94102-4602 Telephone: (415) 554-4748

11 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfcityatty.org

12 Attorneys for Plaintiff

13 CITY AND COUNTY OF SAN FRANCISCO

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

17 FRANCISCO,

STIPULATION AND [PROPOSED] ORDER

18

Plaintiff,

FOR VOLUNTARY DISMISSAL OF COUNT

ONE OF SAN FRANCISCO’S SECOND

19

vs.

AMENDED COMPLAINT WITHOUT

PREJUDICE

20 DONALD J. TRUMP, President of the United

States, UNITED STATES OF AMERICA,

Date Filed: January 31, 2017

21 ELAINE DUKE, Acting Secretary of United Trial Date: April 23, 2018

States Department of Homeland Security,

22 JEFFERSON B. SESSIONS III, Attorney

General of the United States, DOES 1-100,

23

Defendants.

24

25

26

27

28
Stipulation and [Proposed] Order re Dismissal; CCSF v. President Trump, et al; Case No. 17-00485

N:\CXLIT\LI2017\171027\01235816.docx

Case 3:17-cv-00485-WHO Document 201 Filed 11/29/17 Page 2 of 4

1

WHEREAS, Plaintiff CITY AND COUNTY OF SAN FRANCISCO (“Plaintiff” or “San

2 Francisco”) filed a complaint in this action on January 31, 2017, and filed a Second Amended

3 Complaint on May 23, 2017;

4

WHEREAS, the Court entered an Order on Plaintiff’s Motion for Summary Judgment

5 (“Order”) on November 20, 2017, finding that Plaintiff is entitled to summary judgment on Counts

6 Two and Three of its Second Amended Complaint concerning Section 9(a) of Executive Order 13768 7 (Dkt. No. 200);1 and

8

WHEREAS, the Order declined to resolve San Francisco’s claim in Count One regarding 8

9 U.S.C. § 1373, finding that this claim is “better addressed at the time I consider upcoming motions in

10 related litigation. City and County of San Francisco v. Sessions, No. 17-cv-4642-WHO; California v.

11 Sessions, No. 17-cv-4701-WHO (‘the related litigation’)”; and

12

WHEREAS, the parties agree that San Francisco’s claim for declaratory relief regarding 8

13 U.S.C. § 1373 shall be raised through an Amended Complaint that San Francisco will file in the case

14 of City and County of San Francisco v. Sessions, No. 17-cv-4642-WHO; and

15

WHEREAS, dismissal of Count One without prejudice will enable this Court to enter final

16 judgment in the instant case;

17

NOW THEREFORE, the parties hereby stipulate and agree as follows, and respectfully request

18 that the Court so order:

19 //

20 //

21 //

22 //

23 //

24 //

25 1 In its Order, the Court misidentified Counts One and Two in San Francisco’s Second
26 Amended Complaint as relating to 8 U.S.C. § 1373. (Dkt. No. 200 at 2, fn. 1 & 27.) Only Count One in San Francisco’s Second Amended Complaint relates to Section 1373, while Counts Two and Three
27 relate to the Executive Order. (Dkt. No. 105.) The analysis in the Order makes clear that the Court is granting summary judgment on Counts Two and Three, leaving only Count One to be resolved in the
28 future.

Stipulation and [Proposed] Order re Dismissal;

1

Case No. 3:17-cv-00485-WHO

N:\CXLIT\LI2017\171027\01235816.docx

Case 3:17-cv-00485-WHO Document 201 Filed 11/29/17 Page 3 of 4

1 Count One of Plaintiff’s Second Amended Complaint in this action is hereby dismissed without

2 prejudice.

3

4 Dated: November 29, 2017

Dated: November 29, 2017

5

CHAD A. READLER Acting Assistant Attorney General

DENNIS J. HERRERA City Attorney

6 By: /s/ W. Scott Simpson

7

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel

By: /s/ Aileen M. McGrath AILEEN M. McGRATH Deputy City Attorney

8 Attorneys for Defendants

Attorneys for Plaintiff

9 DONALD J. TRUMP, President of the United

CITY AND COUNTY OF SAN FRANCISCO

States; ELAINE DUKE, Acting Secretary of

10 United States Department of Homeland Security;

JEFFERSON B. SESSIONS III, Attorney General

11 of the United States; and UNITED STATES OF

AMERICA

12 Attorneys, Department of Justice

Civil Division, Room 7210

13 Federal Programs Branch

Post Office Box 883

14 Washington, DC 20044

Telephone: (202) 514-3495

15 Facsimile: (202) 616-8470

Email: scott.simpson@usdoj.gov

16

17 FILER’S ATTESTATION
18

19

I, Aileen McGrath, am the ECF user whose identification and password are being used to file

20 this STIPULATION AND [PROPOSED] ORDER FOR VOLUNTARY DISMISSAL OF COUNT

21 ONE OF PLAINTIFF’S SECOND AMENDED COMPLAINT WITHOUT PREJUDICE. Pursuant to

22 Civil Local Rule 5-1(i)(3), I hereby attest that the other above-named signatories concur in this filing.

23

24

25

26

27

28

Stipulation and [Proposed] Order re Dismissal;

2

Case No. 3:17-cv-00485-WHO

N:\CXLIT\LI2017\171027\01235816.docx

Case 3:17-cv-00485-WHO Document 201 Filed 11/29/17 Page 4 of 4

1

ORDER

2

3

Based on the written stipulation of the parties and good cause appearing therefor, IT IS

4 HEREBY ORDERED that Count One of Plaintiff City and County of San Francisco’s Second

5 Amended Complaint against DONALD J. TRUMP, President of the United States, UNITED STATES

6 OF AMERICA, ELAINE DUKE, Acting Secretary of United States Department of Homeland

7 Security, JEFFERSON B. SESSIONS III, Attorney General of the United States, is dismissed without

8 prejudice.

9

10

11 Dated: ____________________, 2017

12

Hon. William H. Orrick

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Stipulation and [Proposed] Order re Dismissal;

3

Case No. 3:17-cv-00485-WHO

N:\CXLIT\LI2017\171027\01235816.docx

 
 Case 3:17-cv-00485-WHO Document 203 Filed 12/07/17 Page 1 of 1

United States District Court Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6

CITY AND COUNTY OF SAN FRANCISCO,

7

Plaintiff,

8

v.

9 DONALD J. TRUMP, et al.,

10

Defendants.

Case No. 17-cv-00485-WHO
ERRATA TO ORDER GRANTING MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 200

11

As the parties point out in their Stipulation and Order for Voluntary Dismissal of Count

12 One of San Francisco’s Second Amended Complaint without Prejudice, Dkt. No. 201, I

13 misidentified Count Two of San Francisco’s Second Amended Complaint in the Order Granting

14 Motion for Summary Judgment as relating to San Francisco’s arguments concerning 8 U.S.C.

15 1373 in two places (Dkt. No. 200 at 2, fn.1 and 27). Count Two relates to the Executive Order,

16 and the analysis in the Order makes clear that I have granted summary judgment with respect to it.

17

Accordingly, the Order Granting Motion for Summary Judgment is amended as follows:

18

 Footnote one now reads, “This Order addresses San Francisco’s motion with respect to

19

Counts Two and Three of its Second Amended Complaint. Count One relates to San

20

Francisco’s claim regarding 8 U.S.C. 1373 (“Section 1983”) and is better addressed at the time I consider upcoming motions in related litigation. City & Cty. of San Francisco v.

21

Sessions, No. 17-cv-4642-WHO; California v. Sessions, No. 17-c-4701-WHO (“the related

litigation”).”

22

 The last sentence on page 27, starting at line 25, is amended to read, “I will consider San

Francisco’s motion for summary judgment on Count One when I address the related issues

23

in the related litigation.”

24

IT IS SO ORDERED.

25 Dated: December 7, 2017 26 27 28

William H. Orrick United States District Judge

 
 Case 3:17-cv-00485-WHO Document 202 Filed 11/30/17 Page 1 of 5

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755 TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 MATTHEW S. LEE, State Bar #295247

8 NEHA GUPTA, State Bar #308864 Deputy City Attorneys

9 City Hall, Room 234 1 Dr. Carlton B. Goodlett Place

10 San Francisco, California 94102-4602 Telephone: (415) 554-4748

11 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfcityatty.org

12 Attorneys for Plaintiff

13 CITY AND COUNTY OF SAN FRANCISCO

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

CITY AND COUNTY OF SAN

Case No. 3:17-cv-00485-WHO

17 FRANCISCO,

STIPULATION AND ORDER FOR

18

Plaintiff,

VOLUNTARY DISMISSAL OF COUNT ONE

OF SAN FRANCISCO’S SECOND AMENDED

19

vs.

COMPLAINT WITHOUT PREJUDICE

20 DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA,
21 ELAINE DUKE, Acting Secretary of United States Department of Homeland Security,
22 JEFFERSON B. SESSIONS III, Attorney General of the United States, DOES 1-100,
23 Defendants.
24

Date Filed: January 31, 2017 Trial Date: April 23, 2018

25

26

27 28 Stipulation and Order re Dismissal;
CCSF v. President Trump, et al; Case No. 17-00485

\\candsf.cand.circ9.dcn\data\Users\WHOALL\_CV\201 7\2017_00485_City_and_County_of_San_Francisco_v
_Donald_J_Trump\17-cv-00485-WHOProposed_Order_for_Dismissal_of_Count_One.docx

Case 3:17-cv-00485-WHO Document 202 Filed 11/30/17 Page 2 of 5

1

WHEREAS, Plaintiff CITY AND COUNTY OF SAN FRANCISCO (“Plaintiff” or “San

2 Francisco”) filed a complaint in this action on January 31, 2017, and filed a Second Amended

3 Complaint on May 23, 2017;

4

WHEREAS, the Court entered an Order on Plaintiff’s Motion for Summary Judgment

5 (“Order”) on November 20, 2017, finding that Plaintiff is entitled to summary judgment on Counts

6 Two and Three of its Second Amended Complaint concerning Section 9(a) of Executive Order 13768 7 (Dkt. No. 200);1 and

8

WHEREAS, the Order declined to resolve San Francisco’s claim in Count One regarding 8

9 U.S.C. § 1373, finding that this claim is “better addressed at the time I consider upcoming motions in

10 related litigation. City and County of San Francisco v. Sessions, No. 17-cv-4642-WHO; California v.

11 Sessions, No. 17-cv-4701-WHO (‘the related litigation’)”; and

12

WHEREAS, the parties agree that San Francisco’s claim for declaratory relief regarding 8

13 U.S.C. § 1373 shall be raised through an Amended Complaint that San Francisco will file in the case

14 of City and County of San Francisco v. Sessions, No. 17-cv-4642-WHO; and

15

WHEREAS, dismissal of Count One without prejudice will enable this Court to enter final

16 judgment in the instant case;

17

NOW THEREFORE, the parties hereby stipulate and agree as follows, and respectfully request

18 that the Court so order:

19 //

20 //

21 //

22 //

23

24

1 In its Order, the Court misidentified Counts One and Two in San Francisco’s Second

Amended Complaint as relating to 8 U.S.C. § 1373. (Dkt. No. 200 at 2, fn. 1 & 27.) Only Count One

25 in San Francisco’s Second Amended Complaint relates to Section 1373, while Counts Two and Three

relate to the Executive Order. (Dkt. No. 105.) The analysis in the Order makes clear that the Court is

26 granting summary judgment on Counts Two and Three, leaving only Count One to be resolved in the

future.

27

28 Stipulation and Order re Dismissal;
Case No. 3:17-cv-00485-WHO

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3 Count One of Plaintiff’s Second Amended Complaint in this action is hereby dismissed without

4 prejudice.

5

6 Dated: November 29, 2017

Dated: November 29, 2017

7

CHAD A. READLER Acting Assistant Attorney General

DENNIS J. HERRERA City Attorney

8 By: /s/ W. Scott Simpson

9

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel

By: /s/ Aileen M. McGrath AILEEN M. McGRATH Deputy City Attorney

10 Attorneys for Defendants

Attorneys for Plaintiff

11 DONALD J. TRUMP, President of the United

CITY AND COUNTY OF SAN FRANCISCO

States; ELAINE DUKE, Acting Secretary of

12 United States Department of Homeland Security;

JEFFERSON B. SESSIONS III, Attorney General

13 of the United States; and UNITED STATES OF

AMERICA

14 Attorneys, Department of Justice

Civil Division, Room 7210

15 Federal Programs Branch

Post Office Box 883

16 Washington, DC 20044

Telephone: (202) 514-3495

17 Facsimile: (202) 616-8470

Email: scott.simpson@usdoj.gov

18

19 FILER’S ATTESTATION
20

21

I, Aileen McGrath, am the ECF user whose identification and password are being used to file

22 this STIPULATION AND [PROPOSED] ORDER FOR VOLUNTARY DISMISSAL OF COUNT

23 ONE OF PLAINTIFF’S SECOND AMENDED COMPLAINT WITHOUT PREJUDICE. Pursuant to

24 Civil Local Rule 5-1(i)(3), I hereby attest that the other above-named signatories concur in this filing.

25

26

27 28 Stipulation and Order re Dismissal;
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1

ORDER

2

3

Based on the written stipulation of the parties and good cause appearing therefor, IT IS

4 HEREBY ORDERED that Count One of Plaintiff City and County of San Francisco’s Second

5 Amended Complaint against DONALD J. TRUMP, President of the United States, UNITED STATES

6 OF AMERICA, ELAINE DUKE, Acting Secretary of United States Department of Homeland

7 Security, JEFFERSON B. SESSIONS III, Attorney General of the United States, is dismissed without

8 prejudice.

9

10

11 Dated: November 30, 2017

12

Hon. William H. Orrick

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27 28 Stipulation and Order re Dismissal;
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Proposed_Order_for_Dismissal_of_Count_One.docx

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Appellee, v. DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-16886
D.C. No. 3:17-cv-00485-WHO Northern District of California, San Francisco

COUNTY OF SANTA CLARA, Plaintiff-Appellee,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-16887
D.C. No. 3:17-cv-00574-WHO Northern District of California, San Francisco

MOTION TO DISMISS APPEALS
Plaintiffs-Appellees the County of Santa Clara and the City and County of San Francisco (the “Counties”) respectfully move the Court for an order dismissing these consolidated appeals as moot as a matter of law, because they challenge a preliminary injunction that has since been superseded by final judgment and a permanent injunction.

1213371

These appeals seek review of a district court order preliminarily enjoining Section 9(a) of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”). The district court granted the preliminary injunction on April 25, 2017. Defendants-Appellants moved for reconsideration and the district court denied that motion on July 20, 2017, leaving the preliminary injunction in place. Defendants-Appellants then filed these appeals on September 18, 2017. The Court set a briefing schedule, which has since been modified by the Court’s Order granting Defendants-Appellants’ unopposed motion for an extension of time to file their opening brief. See Case No. 17-16887, Dkt. 22.
On November 20, 2017, the district court granted the Counties’ motions for summary judgment and permanently enjoined Section 9(a) of the Executive Order. On November 22, 2017, the district court entered final judgment in favor of the County of Santa Clara. On December 7, 2017, the district court entered final judgment in favor of the City and County of San Francisco. DefendantsAppellants have now appealed from both final judgments (Case Nos. 17-17478 and 17-17480), and the Court has set briefing schedules in those appeals.
As a consequence of the district court’s entry of final judgment and a permanent injunction, the instant interlocutory appeals are moot and subject to dismissal. “Where a permanent injunction has been granted that supersedes the
1213371

original preliminary injunction, the interlocutory injunction becomes merged in the final decree and the appeal from the interlocutory preliminary order is properly dismissed.” See In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, the Court should dismiss these appeals as moot.
Pursuant to Circuit Advisory Committee Note to Circuit Rule 27-1(5), the Counties contacted counsel for Defendants-Appellants to advise them of this motion and obtain their position. Defendants-Appellants stated that they oppose the motion.
Respectfully submitted,

Dated: December 15, 2017

OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
By: /s/ James R. Williams JAMES R. WILLIAMS 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110-1770 Telephone: 408 299 5900 Facsimile: 408 292 7240
Attorneys for Plaintiff-Appellee County of Santa Clara

1213371

Dated: December 15, 2017

KEKER, VAN NEST & PETERS LLP
By: /s/ John W. Keker JOHN W. KEKER 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188
Attorneys for Plaintiff-Appellee County of Santa Clara

Dated: December 15, 2017

DENNIS J. HERRERA City Attorney of the City & County of San Francisco
By: /s/Christine Van Aken CHRISTINE VAN AKEN City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, CA 94102-4602 Telephone: 415 554 4633
Attorneys for Plaintiff-Appellee City & County of San Francisco

1213371

CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 369 words. This motion was prepared using Microsoft Word in Times New Roman, 14-point font, a proportionally-spaced typeface.
1213371

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the following:
MOTION TO DISMISS APPEALS with the clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 15, 2017.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: December 15, 2017

s/ John W. Keker John W. Keker Keker, Van Nest & Peters LLP Attorneys for Plaintiff-Appellee County of Santa Clara

1213371

9th Circuit Case Number(s) 17-16886, 17-16887

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

.

Dec 15, 2017

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) /s/ Gloria A. Peterson

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee, v.
DONALD J. TRUMP, et al., Defendants-Appellants.

Nos. 17-16886, 17-17478

COUNTY OF SANTA CLARA, Plaintiff-Appellee, v.
DONALD J. TRUMP, et al., Defendants-Appellants.

Nos. 17-16887, 17-17480

MOTION TO CONSOLIDATE APPEALS AND RETAIN EXISTING BRIEFING SCHEDULE These appeals all arise from a preliminary injunction, subsequently
converted to a permanent injunction, against a provision of an Executive
Order. The government hereby seeks to consolidate new appeals of the
permanent injunction with pending appeals from a preliminary injunction

that had been entered against the same provision for the same reasons, and to retain the briefing schedule that has been set for the original appeals. Plaintiffs have informed us that they oppose this motion.
1. In a single order entered in two cases, the district court issued a nationwide preliminary injunction against a portion of an Executive Order, and then, in another order entered in both cases, the district court denied the government’s motion for reconsideration. The government filed notices of appeal in both cases, and this Court consolidated the appeals (Nos. 17-16886 and 17-16887). The government’s opening brief is due December 18, 2017.
The district court has now granted summary judgment and entered a permanent injunction, again in a single order entered in both cases. The court declared that its summary judgment order “plows no ground” and that summary judgment was warranted for reasons “summarized” in the summary-judgment order and “further described” in the court’s earlier orders that are currently on appeal to this Court. SJ Order 2 (Nov. 20, 2017). The court then entered final judgment in each case, and the government has filed new notices of appeal (Nos. 17-17478 and 17-17480).
2

2. Because these appeals all concern the same district-court reasoning, they should all be treated together to avoid duplicative briefing or unnecessary filings. Accordingly, the government respectfully requests that the appeals be consolidated. The government also respectfully requests that the briefing schedule for the original appeals be retained, and that the case continue to be treated as a Preliminary Injunction Appeal pursuant to Circuit Rule 3.3, so that this Court’s review of the injunction is not unnecessarily delayed. Consistent with that schedule, the government plans to file a single opening brief on December 18, 2017.
3. We have consulted with counsel for plaintiffs, who informed us that they oppose this motion. Plaintiffs’ counsel also informed us that they intended to file a motion to dismiss the preliminary-injunction appeals as moot. The government responded that the government defers to the Court on whether all the appeals should be consolidated, or the original appeals dismissed and the new appeals substituted, so long as the new appeals proceed in accordance with the existing schedule for the original appeals under Circuit Rule 3.3.
3

DECEMBER 2017

Respectfully submitted,
MARK B. STERN
s/ Daniel Tenny DANIEL TENNY BRAD HINSHELWOOD (202) 514-1838
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7215 Washington, DC 20530

4

CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 455 words. This motion was prepared using Microsoft Word 2013 in Book Antiqua, 14-point font, a proportionally-spaced typeface.
s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF SERVICE I hereby certify that on December 15, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
s/ Daniel Tenny Daniel Tenny

 
 Nos. 17-16886, 17-16887
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN FRANCISCO, et al.,
Plaintiffs-Appellees,
v.
JEFFERSON B. SESSIONS, III, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California
BRIEF FOR APPELLANTS
CHAD A. READLER Acting Assistant Attorney General
BRIAN STRETCH United States Attorney
MARK B. STERN DANIEL TENNY BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7215 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-1838

TABLE OF CONTENTS
Page
STATEMENT OF JURISDICTION ................................................................................. 1
STATEMENT OF THE ISSUE ......................................................................................... 1
STATEMENT OF THE CASE .......................................................................................... 2
A. Executive Order 13,768.................................................................................. 2
B. Facts and Prior Proceedings........................................................................... 4
C. Other Pending Proceedings ......................................................................... 14
SUMMARY OF ARGUMENT ......................................................................................... 15
STANDARD OF REVIEW............................................................................................... 17
ARGUMENT ....................................................................................................................... 17
I. The district court’s injunction was premised on a misreading of the Executive Order that is contrary to the Order’s plain language and that the government has consistently disclaimed.......................................................... 17
A. Plaintiffs lack standing to challenge the Executive Order, properly construed, and also have no likelihood of success on the merits............ 17
B. The district court’s interpretation of the Executive Order cannot be reconciled with the Order’s text, much less override the government’s consistent interpretation ...................................................... 22
II. Any injunctive relief should be limited to the plaintiffs....................................... 29
A. In the absence of class certification, plaintiffs lack standing to seek relief on behalf of parties not before the court................................. 29
B. Equitable principles foreclose an injunction greater than necessary to provide complete relief to plaintiffs ....................................................... 32

C. The district court’s analysis cannot be reconciled with binding precedent ........................................................................................................ 34
CONCLUSION ................................................................................................................... 37 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Alvarez v. Smith, 558 U.S. 87 (2009) ...................................................................................................... 30, 35

Arizona v. United States, 567 U.S. 387 (2012) .......................................................................................................... 25

Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298 (1994) .....................................................................................................27-28

Blodgett v. Holden, 275 U.S. 142 (1927) .......................................................................................................... 25

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ................................................................................... 32, 36

Building & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ........................................................................ 26, 27, 28, 29

Califano v. Yamasaki, 442 U.S. 682 (1979) ..............................................................................................32, 33, 35

City of Richmond v. Trump, No. 17-cv-1535, 2017 U.S. Dist. LEXIS 133422 (N.D. Cal. Aug. 21, 2017) ............................. 14, 33-34

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................................... 29

Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996) ........................................................................................... 32

LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001) ........................................................................................... 17

Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011) ...............................................................................32, 33, 34

McKenzie v. City of Chicago, 118 F.3d 552...................................................................................................................... 31

iii

Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469 (9th Cir. 1994) ........................................................................................... 32
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) .................................................................................................... 28, 30
Myers v. United States, 272 U.S. 52 (1926) ............................................................................................................ 26
Reno v. Flores, 507 U.S. 292 (1993) .......................................................................................................... 29
Summers v. Earth Island Institute, 555 U.S. 488 (2009) .................................................................................................... 30, 31
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000) ......................................................................................... 21
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) .................................................................................................29-30
United States v. Mendoza, 464 U.S. 154 (1980) .......................................................................................................... 33
United Transp. Union v. State Bar of Mich., 401 U.S. 576 (1971) .......................................................................................................... 28
Virginia Society for Human Life, Inc. v. Federal Election Commission, 263 F.3d 379 (4th Cir. 2001) ........................................................................................... 33
Warth v. Seldin, 422 U.S. 490 (1975) .......................................................................................................... 31
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ......................................................................................... 36
Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719 (9th Cir. 1983) ..................................................................................... 30, 31
iv

Statutes: 8 U.S.C. § 1373(a) ................................................................................................................... 3 8 U.S.C. § 1373(b)................................................................................................................... 3 28 U.S.C. § 1291 ..................................................................................................................... 1 28 U.S.C. § 1292(a)(1) ............................................................................................................ 1 28 U.S.C. § 1331 ..................................................................................................................... 1
Regulations: 8 C.F.R. § 287.7(a) .................................................................................................................. 4 8 C.F.R. § 287.7(d).................................................................................................................. 4
Rules: Fed. R. Civ. P. 4(a)(1)(B) ....................................................................................................... 1 Federal Rule of Civil Procedure 59(e).................................................................................. 1
Other Authorities: Attorney Gen., Memorandum for All Department
Grant-Making Components (May 22, 2017) ............................................... 9., 10, 19, 20 Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993) .................................... 26 Exec. Order No. 13,279, 67 Fed. Reg. 77,141 (Dec. 12, 2002) ...................................... 26 Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011) .......................................... 26 Exec. Order No. 13,765, 82 Fed. Reg. 8351 (Jan. 20, 2017) .......................................... 26 Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) ..................................... passim
v

Letter from Samuel R. Ramer, Acting Assistant Att’y Gen., Office of Legislative Affairs, Dep’t of Justice, to Senators Elizabeth Warren and Edward J. Markey (Mar. 7, 2017)............................................. 19
Office of Legal Counsel, Proposed Executive Order Entitled “Federal Regulation,” 5 Op. O.L.C. 59 (1981) ............................................................. 26
Restatement (Second) of Contracts.................................................................................... 25
vi

STATEMENT OF JURISDICTION Plaintiffs in these two related cases invoked the district court’s jurisdiction under 28 U.S.C. § 1331. In a single order entered in both cases, the district court entered a preliminary injunction on April 25, 2017. Preliminary Injunction Order (PI Order) [ER 52]. The government filed timely motions for reconsideration pursuant to Federal Rule of Civil Procedure 59(e) on May 23, 2017, which the district court denied on July 20, 2017. Recons. Order [ER 32]. The government filed timely notices of appeal on September 18, 2017. [ER 105, 107]; see Fed. R. Civ. P. 4(a)(1)(B). Jurisdiction for these appeals was premised on 28 U.S.C. § 1292(a)(1). On November 20, 2017, the district court granted summary judgment to plaintiffs and converted its preliminary injunction into a permanent injunction. Summ. J. Order (SJ Order) [ER 4]. The court then entered final judgment in the Santa Clara case on November 22, 2017, Judgment [ER 3], and entered final judgment in the San Francisco case on December 7, 2017, Judgment [ER 1]. The government filed timely notices of appeal on December 14, 2017. [ER 101, 103]; see Fed. R. Civ. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE An Executive Order directs the Attorney General and the Secretary of Homeland Security to, “in their discretion and to the extent consistent with law, . . . ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for

law enforcement purposes by the Attorney General or the Secretary.” The government has construed the provision to direct the Attorney General and the Secretary to exercise existing authority. The issues are:
1. Whether the district court erred in construing the provision as purporting to provide unilateral authority to impose new conditions on all federal funding from any source, and enjoining it on that basis.
2. Whether, even assuming the district court properly construed the Executive Order, the district court erred in extending its injunction beyond the plaintiffs in this case.
STATEMENT OF THE CASE A. Executive Order 13,768 On January 25, 2017, the President issued Executive Order 13,768. The Executive Order states that “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” Exec. Order No. 13,768 (EO), 82 Fed. Reg. 8799, § 1 (Jan. 25, 2017) [ER 187]. A single operative provision of the Executive Order is at issue here. That provision, section 9(a), begins by stating that “[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.” “In furtherance of this policy,” the Order states that “the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that
2

willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” EO § 9(a) [ER 189].
The referenced provision of federal law, 8 U.S.C. § 1373, was enacted in 1996 and states that “[n]otwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Department of Homeland Security (DHS)] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a); see also id. § 1373(b) (prohibiting persons or agencies from prohibiting or restricting a government entity from sending to DHS, maintaining, or exchanging with other government entities information regarding immigration status).
The Executive Order goes on to state that the Secretary of Homeland Security has the “authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” EO § 9(a) [ER 189]. And it instructs the Attorney General to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Id.
Section 9 also has two reporting requirements. First, it requires the Secretary of Homeland Security, on a weekly basis, to “make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise
3

failed to honor any detainers with respect to such aliens.” EO § 9(b) [ER 189]. The referenced detainers are requests by the federal government for states and localities to notify the federal government before they release from state custody particular aliens who may be subject to removal, and in certain circumstances to briefly extend their detention to allow the federal government to assume custody. 8 C.F.R. § 287.7(a), (d). Second, the Executive Order requires the Director of the Office of Management and Budget “to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.” EO § 9(c) [ER 189].
In the final section of the Executive Order, entitled “General Provisions,” the Order reiterates that “[t]his order shall be implemented consistent with applicable law and subject to the availability of appropriations.” EO § 18(b) [ER 190].
B. Facts and Prior Proceedings 1. On January 31, 2017, six days after the Executive Order was issued, the City and County of San Francisco instituted an action to challenge the Executive Order. The County of Santa Clara filed its own action on February 3, 2017. Both suits preceded any action by the federal government based on the Executive Order, and preceded any announcement of how the Order would be interpreted. In particular, the Secretary of Homeland Security had not yet designated any sanctuary jurisdictions, and the government had not declared its intention to withhold any grant funding.
4

Both plaintiffs sought preliminary injunctions, and the district court considered the cases together (although it did not formally consolidate them).
In opposing the preliminary injunction, the government stated that Section 9(a) constitutes a direction to the Attorney General and the Secretary of Homeland Security to exercise existing authority to impose and enforce conditions on federal grants that require compliance with 8 U.S.C. § 1373. It thus affects only those federal grants that are administered by the Department of Justice or the Department of Homeland Security. And the Executive Order does not condition any grant on compliance with 8 U.S.C § 1373. Such conditions may be imposed, as consistent with law, only by the Attorney General and the Secretary of Homeland Security pursuant to their existing authority. The government also explained that it was not novel for the Department of Justice to condition receipt of funds on compliance with 8 U.S.C. § 1373, and noted that the Department of Justice had already applied this condition to certain grants in 2016.
On April 25, 2017, in an order issued in both cases, the district court issued a preliminary injunction premised on its conclusion, in direct conflict with the government’s understanding of the Executive Order, that the Order purports to give the Secretary of Homeland Security and the Attorney General “unilateral authority to impose new conditions on federal grants.” PI Order 14 [ER 65] (quotation marks omitted). The court rejected as “implausible” the government’s view that the Order applies only to grants issued by the Department of Justice and the Department of
5

Homeland Security, stating that the “Department of Justice is responsible for federal law enforcement throughout the country, not just within its own Department,” and that there was no provision of the Order that limited “Federal grants” to grants issued by those two agencies. Id. at 15 [ER 66]. The court also noted that other provisions of the Order that mention federal funds (none of which are at issue here) are not limited to the Department of Justice and the Department of Homeland Security. The court stated that “[t]he Government attempts to read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat,” PI Order 14 [ER 65], but declared that the Executive Order had to be read to have legal effect rather than as a statement of the President’s policies, id. at 15-16 [ER 66-67].
In assessing the likelihood that the Executive Order would be enforced against plaintiffs, the district court relied on “numerous statements” from government leaders that, in the court’s view, “reaffirm[ed] the Government’s intent to enforce the Order and to use the threat of withholding federal funds as a tool to coerce states and local jurisdictions to change their policies.” PI Order 23 [ER 74] (quoting statement by the President that he did not “ want to defund anybody” but “[i]f they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.”); id at 20 [ER 71] (citing statement by Attorney General that “urg[ed] states and local jurisdictions to comply with . . . 8 U.S.C. Section 1373” and stated that “failure to remedy violations could result in withholding grants, termination of grants, and
6

disbarment or ineligibility for future grants” (first alteration in original)). The court noted that in public statements, federal officials had mentioned a number of jurisdictions including California, and San Francisco in particular, as examples of sanctuary jurisdictions. Id. at 25-26 [ER 76-77].
Having interpreted the Executive Order to impose new conditions on all sources of federal funding, the district court concluded that plaintiffs had standing based on the uncertainty created by the possible imposition of new, unidentified conditions. PI Order 19 [ER 70]. The court also concluded that the case was ripe, because the only remaining uncertainty related to whether the government would take enforcement action, a question that the court believed is present in every preenforcement case. Id. at 34 [ER 85].
The district court’s discussion of plaintiffs’ likelihood of success on the merits was premised on its interpretation of the Executive Order as directing imposition of conditions not already authorized by law. On the basis of this interpretation, the court first concluded that the Order likely violates the separation-of-powers doctrine because it “purports to give the Attorney General and the Secretary [of Homeland Security] the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress.” PI Order 36 [ER 87]. Second, the court concluded that the Order likely violates the Spending Clause by “purport[ing] to retroactively condition all ‘federal grants’ on compliance with Section 1373.” Id. at 38 [ER 89]. Third, the court concluded that the Order impermissibly “attempts to
7

conscript states and local jurisdictions into carrying out federal immigration law,” in violation of the Tenth Amendment. Id. at 39 [ER 90]. Fourth, the court held that the Executive Order was likely void for vagueness because it did not make clear what conduct would lead to defunding or enforcement action, and did not provide clear standards for enforcement action. Id. at 41-43 [ER 92-94]. Finally, the court held that the order likely violated the Due Process Clause because ineligibility to receive federal funds would be determined “through a discretionary and undefined process.” Id. at 43 [ER 94].
Stating that plaintiffs would suffer irreparable harm in the form of budgetary uncertainty from a possible withdrawal of all federal funding, the district court held that the balance of harms favored plaintiffs. PI Order 47-48 [ER 98-99].
Although the only plaintiffs are San Francisco and Santa Clara, the court concluded that it could properly issue a nationwide injunction because the Executive Order was invalid on its face. PI Order 48 [ER 99]. The district court’s order concluded by stating that “[t]he defendants (other than the President) are enjoined from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction does not impact the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a sanctuary jurisdiction.” PI Order 49 [ER 100].
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2. On May 22, 2017, the Attorney General issued a Memorandum making clear that the Justice Department’s understanding of the Executive Order was that presented to the district court in its consideration of plaintiffs’ preliminary-injunction motion. See Memorandum for All Department Grant-Making Components (AG Mem.) [ER 184]. The memorandum stated that the Attorney General has “determined that section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.” Id. at 1 [ER 184]. The Attorney General explained that the Order “expressly requires enforcement ‘to the extent consistent with law,’ and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.” Id. at 1-2 [ER 184-85]. The Attorney General further explained that the Executive Order does not “purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect.” Id. at 2 [ER 185]. Rather, the Executive Order “directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion.” Id.
The Attorney General stated that to carry out the Executive Order, the Department of Justice would “require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a
9

condition for receiving an award.” AG Mem. 2 [ER 185]. The requirement would apply to any existing grant that already “expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition,” and “grantees will receive notice of their obligation.” Id.
The Attorney General also stated that he had consulted with the Secretary of Homeland Security and determined that “for purposes of enforcing the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’ ” AG Mem. 2 [ER 185]. The Attorney General acknowledged that the “definition of ‘sanctuary jurisdiction’ is narrow,” but stated that the Executive Order does not limit the Department’s authority to act in other ways, separate and apart from the Order. Id.
3. Relying on the Attorney General’s Memorandum, the government sought reconsideration of the district court’s preliminary injunction pursuant to Rule 59(e). The government sought, in the alternative, clarification that the court’s order does not prohibit the government from imposing additional conditions on grant programming based on sources independent of the Executive Order.
The district court denied reconsideration. The court stated that the Attorney General’s Memorandum did not constitute a basis for reconsideration because it merely adopted “the same interpretation the government proposed at oral argument,” which the court had already “assessed and rejected . . . as not legally plausible.” Recons. Order 7 [ER 38]. The court concluded that the Attorney General’s
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Memorandum was not “the kind of binding authority that would genuinely dispel the Counties’ fear of unlawful enforcement.” Id. at 9 [ER 40]. The court treated the Attorney General’s Memorandum not as a legal opinion, but rather as a plan of enforcement that did not affect other agencies. Id. at 9-12 [ER 40-43]. Finally, the court observed that the Attorney General could revoke the Memorandum at any time, or that “the President could replace the Attorney General to revoke it.” Id. at 13 [ER 44]. The court stated that the problem with a law that confers excessive discretion cannot be resolved by having the official who received excessive discretion impose a revocable limitation on himself. Id.
In response to the government’s motion for clarification, the district court included in the same order a footnote stating that “[t]he government correctly reads the PI Order as enjoining only section 9(a) of the Executive Order. The PI Order does not address or enjoin any other independent authority that may allow the government to impose grant conditions on funds, as no such issue was before the court.” Recons. Order 1 n.1 [ER 32 n.1].
4. The government appealed the preliminary-injunction order in both cases, and this Court consolidated the appeals. Before the government filed its opening brief, the district court granted summary judgment to plaintiffs and entered a permanent nationwide injunction. The court declared that its new order “plows no new ground,” but just “summarize[s]” reasons for the ruling that were “further described in [the court’s] earlier Orders.” SJ Order 2 [ER 5].
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The district court reasoned that “[i]f Section 9(a) does not direct the Attorney General and the Secretary to place new conditions on federal funds, then it only authorizes them to do something they already have the power to do.” SJ Order 17 [ER 20]. The court concluded that this reading would leave the provision without “legal effect.” Id.
The district court held that the Executive Order violates the separation of powers because it purports “to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not authorized by Congress.” SJ Order 19 [ER 22]. It stated that the Executive Order exceeds federal authority under the Spending Clause because it “purports retroactively to condition all ‘federal grants’ on compliance with Section 1373”; because “there is no nexus between Section 1373 and most categories of federal funding, such as funding related to Medicare, Medicaid, transportation, child welfare services, immunization and vaccination programs, and emergency preparedness”; and because the “Executive Order threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on which the Counties rely.” Id. at 21-22 [ER 24-25].
The district court also held that plaintiffs “have demonstrated that under their reasonable interpretation, the Executive Order equates ‘sanctuary jurisdictions’ with ‘any jurisdiction that ignored or otherwise failed to honor any detainers’ and therefore places such jurisdictions at risk of losing all federal grants.” SJ Order 23 [ER 26] (quoting EO § 9(b) [ER 189]). This interpretation of the Executive Order, which the
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government had also disclaimed, was not premised on the provision relating to federal grants, which applies to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions).” EO § 9(a) [ER 189]. Rather, the district court quoted a reporting requirement contained in section 9(b) of the Order, which requires the Secretary of Homeland Security, on a weekly basis, to “make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” EO § 9(b) [ER 189]. Based on its conclusion that the Executive Order “seeks to condition all federal grants on honoring civil detainer requests,” the court concluded that “it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.” SJ Order 23 [ER 26].
The district court held that the Executive Order was unconstitutionally vague because it does not provide “clear guidance on how to comply with its provisions or what penalties will result from non-compliance.” SJ Order 26 [ER 29]. The court also held that the Executive Order fails to provide procedural due process because the Order does not contemplate any notice or administrative or judicial procedure to challenge enforcement actions taken under the Order. Id. at 27 [ER 30].
The district court then entered an injunction that permanently enjoins the defendants “from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” SJ Order 28 [ER 31]. The court held that
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“[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here, a nationwide injunction against the defendants other than President Trump is appropriate.” Id.
After accepting San Francisco’s voluntary dismissal of a claim not at issue here, the district court entered final judgment in both cases. Judgment [ER 1]; Judgment [ER 3]. The government filed new notices of appeal and moved to consolidate the cases with the pending appeals from the preliminary-injunction order. Plaintiffs have moved to dismiss the preliminary-injunction appeals as moot; the government took no position on that motion provided that the schedule for the preliminary-injunction appeals remained in effect.
C. Other Pending Proceedings There are two other pending cases challenging the same Executive Order. See City of Chelsea v. Trump, No. 17-cv-10214 (D. Mass. filed Feb. 8, 2017); City of Seattle v. Trump, No. 17-cv-497 (W.D. Wash. filed Mar. 29, 2017). In addition, the district court here has dismissed a related case filed by the City of Richmond. See City of Richmond v. Trump, No. 17-cv-1535, 2017 U.S. Dist. LEXIS 133422 (N.D. Cal. Aug. 21, 2017). The court concluded that the government’s public statements had not indicated that it intended to enforce the Executive Order specifically against Richmond. Id. at *9-12. Accordingly, Richmond did not have “a well-founded fear of enforcement under the Executive Order.” Id. at *13.
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SUMMARY OF ARGUMENT 1. The challenged Executive Order provides that “the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” EO § 9(a) [ER 189]. On its face, this provision directs the Attorney General and the Secretary, to the extent permitted by law, to impose and enforce a condition on federal grants that requires recipients to comply with 8 U.S.C. § 1373. Moreover, the Attorney General has stated, and the government has repeatedly explained in this litigation, that the government construes the Executive Order to direct those two officials to exercise their existing authority to impose and enforce this condition where permitted by law. The district court recognized that the Order, thus understood, directs no action not otherwise authorized by law and is not properly enjoined. The district court mistakenly concluded that the Executive Order unambiguously foreclosed the Attorney General’s understanding. In the court’s view, unlike Executive Orders that merely direct government officials in the exercise of their existing authority, this Executive Order purports to grant new authority and compels the Attorney General and the Secretary of Homeland Security to impose new conditions on all federal funding, without regard to whether the conditions are
15

otherwise authorized. The court further concluded that such conditions must be imposed on funding entirely unrelated to the Departments of Justice and Homeland Security. Having interpreted the Order in this manner, the court declared that it was “entirely inconsistent with law,” and should therefore be enjoined.
This reading of the Executive Order formed the basis of the court’s conclusion that plaintiffs have standing, that their claims are ripe, and that the Order is not legally sustainable. The district court erred in insisting that the text of the Order compels a reading that would render it unlawful. Indeed, the Order unambiguously requires that its implementation should involve no action inconsistent with law. And even if the Order’s text did not expressly require this reading, it would be improper for a court to presume that the President intended to direct unlawful action, contrary to the standard presumption that the Executive Branch intends to act lawfully. Otherwise, numerous executive orders would be subject to constitutional challenge based on overly broad readings of the text.
2. Even if this Court were to adopt the district court’s reasoning, it would be necessary to limit the scope of the injunction to the plaintiffs in this case. This Court has long recognized that, in the absence of class certification, courts lack authority to provide relief that benefits only third parties. This conclusion follows both from principles of Article III standing and from fundamental precepts regarding the exercise of equitable discretion.
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Even if a provision is held to be invalid on its face, an injunction is warranted only insofar as it is necessary to provide complete relief to plaintiffs. The district court ignored these principles when it issued a nationwide injunction. The portion of the injunction that applies to funds that would not flow to plaintiffs in this case should be reversed.
STANDARD OF REVIEW This Court “review[s] for abuse of discretion the district court’s imposition of a permanent injunction, but review[s] any determination underlying the grant of the injunction by the standard that applies to that determination.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001). Here, the permanent injunction was premised on a grant of summary judgment, which “is reviewed de novo.” Id.
ARGUMENT I. The district court’s injunction was premised on a misreading of
the Executive Order that is contrary to the Order’s plain language and that the government has consistently disclaimed. A. Plaintiffs lack standing to challenge the Executive Order,
properly construed, and also have no likelihood of success on the merits. 1. The challenged Executive Order provides that “the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the
17

Secretary.” EO § 9(a) [ER 189]. On its face, the provision directs two Cabinet officials to ensure, “to the extent consistent with law,” that “federal grants” are not awarded to entities that willfully refuse to comply with 8 U.S.C. § 1373. The President has thus directed those two officials to include compliance with 8 U.S.C. § 1373 as a condition on a particular federal grant, or to enforce such a condition if it is already in place, if they otherwise have authority to do so. The Order also explicitly preserves their discretion generally, and specifically preserves their discretion insofar as they may deem it necessary to excuse noncompliance for law enforcement purposes.
The Order’s plain text makes clear its limited scope. The Order is directed to the Attorney General and the Secretary of Homeland Security, and does not purport to control the actions of other agencies. It applies to “federal grants,” not to the broader category of federal funds (referenced elsewhere in the Order, see, e.g., EO § 2(c) [ER 187]). And it does not purport to authorize government officials to impose conditions that they lack statutory authority to impose, instead expressly stating that action should be taken only “to the extent consistent with law.” Id. § 9(a) [ER 189]; see also id. § 18(b) [ER 190] (“This order shall be implemented consistent with applicable law . . . .”).
The Department of Justice has consistently confirmed this natural reading of the Executive Order. The Attorney General issued a Memorandum for All Department Grant-Making Components, which states that “section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of
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Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.” AG Mem. 1 [ER 184].
The Memorandum further explains that the Executive Order “expressly requires enforcement ‘to the extent consistent with law,’ and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation,” and that the Executive Order does not “purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect.” AG Mem. 1-2 [ER 184-85]. The Executive Order simply “directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion.” Id. at 2 [ER 185]; see also Letter from Samuel R. Ramer, Acting Assistant Att’y Gen., Office of Legislative Affairs, Dep’t of Justice, to Senators Elizabeth Warren and Edward J. Markey (Mar. 7, 2017) [ER 186] (explaining that “[a]s directed by the Order, the Department of Justice is in the process of identifying, in its discretion, what actions, if any, can lawfully be taken in order to encourage state and local jurisdictions to comply with federal law”).
The Attorney General explained that the Department of Justice would implement the Executive Order by “requir[ing] jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award.” AG Mem. 2 [ER 185]. Such a requirement will apply both to any existing grant that already “expressly contains this
19

certification condition and to future grants for which the Department is statutorily authorized to impose such a condition.” Id. In either case, “grantees will receive notice of their obligation.” Id.
2. The district court properly did not suggest that plaintiffs would be entitled to an injunction if the court accepted the government’s consistent interpretation of the Executive Order. The court’s analysis of standing, ripeness, and the merits is premised entirely on its conclusion that the Executive Order means something very different from the Attorney General’s understanding. In the district court’s view, the only “plausible” interpretation of the Executive Order is that it directs the Attorney General and the Secretary of Homeland Security to impose funding conditions not otherwise authorized by law. And while declining to give weight to the Attorney General’s interpretation of the Order, the court further presumed that the Attorney General would compel agencies not even subject to the Order to withhold federal funding, because the “Department of Justice is responsible for federal law enforcement throughout the country, not just within its own Department.” PI Order 15 [ER 66].
This assumption underlies the district court’s conclusion that plaintiffs’ claims are justiciable because of the “potential loss of all federal grants” or the possibility of a “sudden and unanticipated cut” in grant funding. SJ Order 15 [ER 18]. Only on this basis could the court posit, for example, that the federal government might cut off “funding related to Medicare, Medicaid, transportation, child welfare services,
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immunization and vaccination programs, and emergency preparedness.” Id. at 21 [ER 24]. The court did not suggest that there would be any prospect of such injuries if, as the Attorney General has explained, the Executive Order contemplates that any effort to impose or enforce funding conditions will be justified by existing authority to implement a particular grant program, and will afford notice and an opportunity to be heard.
It is axiomatic that plaintiffs cannot establish standing or ripeness without demonstrating that there is a realistic danger that the Executive Order will be enforced against them. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). The Executive Branch has confirmed that the Order itself cannot be enforced against anyone, because it merely constitutes a directive to federal government officials about how to exercise their existing authority. Bedrock principles require that the suits be dismissed because plaintiffs’ injury is premised on a counterfactual understanding of the Executive Order and the Attorney General has made clear that the government will not attempt to impose or enforce conditions not otherwise authorized by law.
The district court’s analysis of the merits rests on the same erroneous premises. The various statutory and constitutional defects described in the court’s opinions could arise only if the Executive Order had the effect ascribed to it by the district court. The district court has always recognized that the Order, as understood by the Executive Branch, has no such implications. The postulated problems depend,
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instead, on the assumption that the Executive Order purports to provide new authority that is not conferred by statute; that grant conditions will be imposed in circumstances in which they are not germane; and that plaintiffs will be compelled to comply with the Executive Order itself, rather than with conditions authorized by law that are imposed in connection with federal grants. See SJ Order 19-22 [ER 22-25]. The Executive Order, as consistently construed by the government, gives rise to no such concerns, and such concerns are flatly at odds with the Order’s text, which specifies, among other things, that any restrictions on funding should be imposed only “to the extent consistent with law.” EO § 9(a) [ER 189].
B. The district court’s interpretation of the Executive Order cannot be reconciled with the Order’s text, much less override the government’s consistent interpretation.
1. The district court held that the government’s lawful interpretation of the Executive Order was “not legally plausible in light of the Executive Order’s plain language.” SJ Order 2 [ER 5]. And, in rejecting the government’s explanation “that the Executive Order does not change the law, but merely directs the Attorney General and Secretary to enforce existing law,” the court declared that “to read the Executive Order as the federal government desires requires rewriting, not just reinterpretation.” Id. at 17 [ER 20] (quotation marks and brackets omitted).
It is unclear what “plain language” underlies the court’s conclusion or why the Attorney General’s understanding of the Executive Order requires “rewriting.” The section of the summary-judgment opinion that rejects the Attorney General’s view of
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the Executive Order quotes no language of the Order that would lend any support to that conclusion. See SJ Order 17 [ER 20]. The only language of the Executive Order quoted in that section of the court’s opinion is the Order’s requirement that any actions taken by the Attorney General or the Secretary of Homeland Security be “consistent with law,” which is precisely the point urged by the government.
The relevant discussion in the preliminary-injunction order likewise fails to explain why the Executive Order’s plain language compels the district court’s construction. See PI Order 12-16 [ER 63-67]. The district court pointed out that the relevant provision of the Executive Order states that “ ‘sanctuary jurisdictions’ are ‘not eligible to receive’ federal grants.” Id. at 14 [ER 65] (quoting EO § 9(a) [ER 189] (district court’s emphasis)). Based on this language, the district court stated that the Executive Order “purports to delegate to the Attorney General and the Secretary the authority to place a new condition on federal grants.” Id. As noted, that language, which is expressly qualified by the phrase “to the extent consistent with law,” is properly understood to direct the Attorney General and the Secretary to exercise their existing authority.
The district court erred in declaring that the government’s position “is in conflict with the Order’s express language and is plainly not what the Order says.” PI Order 14 [ER 65]. The district court, not the Attorney General, undertook to rewrite the terms of the Executive Order. The district court noted that it was construing the Order to be “entirely inconsistent with law.” Id. That conclusion cannot plausibly be
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squared with the Order’s express direction to take actions “to the extent consistent with law.” EO § 9(a) [ER 189]; see also id. § 18(b) [ER 190] (Executive Order to be “implemented consistent with applicable law”).
The district court’s suggestion that the Executive Order could withdraw federal funding from jurisdictions that do not comply with federal detainer requests likewise has no basis in the Order’s text. The provision of the Executive Order that relates to federal grants does not mention detainer requests, but instead applies to “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions).” EO § 9(a) [ER 189]. Detainers are referenced in a separate provision, not at issue here, that merely imposes a reporting requirement: “To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary [of Homeland Security] shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” Id. § 9(b) [ER 189]. It is thus clear that when the Executive Order meant to refer to detainer requests, it did so expressly. The reporting provision in no way threatens federal funding, much less “seeks to condition all federal grants on honoring civil detainer requests.” SJ Order 23 [ER 26].
There is likewise no basis for enjoining the provision of the Executive Order that directs the Attorney General to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice
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that prevents or hinders the enforcement of Federal law.” EO § 9(a) [ER 189]. The provision, on its face, plainly has no direct effect on the plaintiffs here, who could contest any enforcement action instituted by the Attorney General in the appropriate forum. The district court did not identify any language of the Executive Order compelling the Attorney General to act in an impermissible manner, and indeed acknowledged that the Executive Order does not specify what enforcement action is contemplated. SJ Order 23 [ER 26]. The court nonetheless presumed, contrary to basic presumptions in favor of lawful constructions, that the Attorney General would implement the provision in a manner that was unconstitutional. See id. at 23-24 [ER 26-27]; cf. Arizona v. United States, 567 U.S. 387, 415 (2012) (“inappropriate to assume” that state enactment will be construed in an impermissible manner); Blodgett v. Holden, 275 U.S. 142, 148 (1927) (per curiam) (presumption that statutes should be construed to be lawful); Restatement (Second) of Contracts § 203(a) (same for contracts).
2. The district court rejected the government’s interpretation of the Executive Order based in substantial part on the court’s view that the Executive Order, as construed by the government, would be “legally meaningless.” SJ Order 17 [ER 20]. The court thought it implausible that an Executive Order would “only authorize[ ] [the Attorney General and the Secretary] to do something they already have the power to do.” Id.
There is nothing novel about a President issuing an Executive Order to guide his subordinates in their implementation of existing law. The President has the
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constitutional authority, “as head of the Executive Branch, to ‘supervise and guide’ executive officers in ‘their construction of the statutes under which they act.’ ” Office of Legal Counsel, Proposed Executive Order Entitled “Federal Regulation,” 5 Op. O.L.C. 59, 60 (1981) (quoting Myers v. United States, 272 U.S. 52, 135 (1926)). The President may “require agencies to exercise their discretion, within statutory limits,” in accordance with the terms of an Executive Order. Id. at 63. And Presidents regularly exercise their supervisory authority over how executive officers carry out their statutory responsibilities. See, e.g., Exec. Order No. 12,866, 58 Fed. Reg. 51,735, § 1(b), (Sept. 30, 1993) (directing agencies on how to exercise regulatory authority, “to the extent permitted by law and where applicable”); Exec. Order No. 13,563, 76 Fed. Reg. 3821, § 1(b) (Jan. 18, 2011) (similar); Exec. Order No. 13,279, 67 Fed. Reg. 77,141, § 2 (Dec. 12, 2002) (directing agencies, “to the extent permitted by law,” to be guided by certain principles when “formulating and implementing policies that have implications for faith-based and community organizations”); Exec. Order No. 13,765, 82 Fed. Reg. 8351, § 2 (Jan. 20, 2017) (directing agencies to “exercise all authority and discretion available to them” to waive certain requirements “[t]o the maximum extent permitted by law”).
The D.C. Circuit’s discussion in analyzing an Executive Order in Building & Construction Trades Department, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), illustrates these principles. The D.C. Circuit recognized that when the President “directs his subordinates how to proceed in administering federally funded projects,
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but only ‘to the extent permitted by law,’ ” the consequence is that “if an executive agency . . . may lawfully implement the Executive Order, then it must do so; if the agency is prohibited, by statute or other law, from implementing the Executive Order, then the Executive Order itself instructs the agency to follow the law.” Id. at 33. No court has suggested that orders of this kind are legally meaningless.
3. At bottom, the district court’s rulings rest not on the Order’s “plain language” but on the court’s conception of “the Order’s broad intent.” PI Order 15 [ER 66]. The issue is not the “intent” that might be imputed to the Order, but the Order’s text as consistently interpreted by the Executive Branch. And, in any event, the government’s interpretation is consistent with the Order’s stated intent, which is to withdraw federal money from sanctuary jurisdictions and to enforce 8 U.S.C. § 1373 to the extent permitted by law. See EO § 2(c) [ER 187] (“except as mandated by law”); id. § 9(a) [ER 189] (“to the fullest extent of the law”). Compliance with legal requirements is a theme running throughout the text of the Order. See id. §§ 7, 8, 10(b), 12, 14, 18(b) [ER 188-90] (stating that actions should be taken only as “permitted by” or “consistent with” law).
Various statements of public officials about their desire to withdraw federal money from sanctuary jurisdictions and to ensure compliance with 8 U.S.C. § 1373, see, e.g., SJ Order 3 [ER 6], reflect the intention to enforce 8 U.S.C. § 1373 as a grant condition wherever permitted by law. And in any event, such statements cannot alter the plain meaning of the Executive Order. See Barclays Bank PLC v. Franchise Tax Bd.
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of Cal., 512 U.S. 298, 329-30 (1994) (declining to ascribe legal significance to “Executive Branch actions—press releases, letters, and amicus briefs—[that] are merely precatory”).
The court’s analysis of justiciability and the merits thus rests on a reading of the Order at odds with its plain text and with the interpretation of the Executive Branch. A court does not properly exercise its equitable powers to prohibit conduct that is not contemplated by the Executive Order’s text and that has been expressly disclaimed by the Attorney General. “An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). The extraordinary remedy of an injunction is not warranted “in order to remove any ‘temptation’ for the [defendant] to participate in [unlawful] activities,” in the absence of proof that the defendant has concrete plans to engage in unlawful conduct. United Transp. Union v. State Bar of Mich., 401 U.S. 576, 583 (1971). Rather, “[a]n injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illegal and that the defendant, if not enjoined, will engage in such conduct.” Id. at 584 (emphasis added).
The D.C. Circuit thus rejected a challenge to an Executive Order when the “plaintiffs raise[d] the prospect that, notwithstanding the President’s instruction that the Executive Order be applied only ‘[t]o the extent permitted by law,’ a particular agency may try to give effect to the Executive Order when to do so is inconsistent with the relevant funding statute.” Building & Constr. Trades Dep’t, 295 F.3d at 33
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(second alteration in original). Concerns about hypothetical unlawful funding decisions provided “no warrant to relieve the plaintiffs of their burden in this facial challenge to show that [the relevant provision] of the Order is without any valid application.” Id. (citing Reno v. Flores, 507 U.S. 292, 301 (1993)). Here, similarly, neither the Executive Order’s text nor the government’s consistent interpretation of it suggests that the Order is unlawful in any respect, much less that it is without any valid application. No injunction is warranted. II. Any injunctive relief should be limited to the plaintiffs.
As we have shown, the district court’s conclusion that injunctive relief was warranted rests on an error of law. Even assuming, however, that this Court were to agree with the district court’s reasoning, it would be necessary to vacate the injunction insofar as it extends to entities other than the plaintiffs in this case. Vacatur is required by principles of Article III standing and by limitations on a court’s equitable authority.
A. In the absence of class certification, plaintiffs lack standing to seek relief on behalf of parties not before the court.
To establish standing, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quotation marks omitted). “[S]tanding is not dispensed in gross,” and the plaintiff must establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates,
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Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted). As this Court has recognized, “our legal system does not automatically grant individual plaintiffs standing to act on behalf of all citizens similarly situated.” Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719, 730 n.1 (9th Cir. 1983).
Thus, in Alvarez v. Smith, 558 U.S. 87, 92 (2009), the plaintiffs lacked standing to seek declaratory and injunctive relief against the State’s practice of keeping property in custody without a prompt post-seizure hearing because the plaintiffs had already received the seized property or forfeited their claims to it. The Supreme Court explained that since class certification had been denied, the “only disputes relevant here are those between these six plaintiffs and the State’s Attorney . . . and those disputes are now over.” Id. at 93; see also Monsanto, 561 U.S. at 163 (holding that the plaintiffs “d[id] not represent a class, so they could not seek to enjoin [an agency order] on the ground that it might cause harm to other parties”).
The same principles inform the Supreme Court’s repeated admonition that the standing requirements of Article III preclude a court from granting relief that is not directed to remedying the injury asserted by the plaintiff. Thus, for example, in Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Supreme Court held that the plaintiffs lacked standing to challenge Forest Service regulations after the parties had resolved the controversy regarding the application of the regulations to the project that had caused the plaintiffs’ injury. Noting that the plaintiffs’ “injury in fact with regard to that project ha[d] been remedied,” id. at 494, the Court held that to allow the
30

plaintiffs to challenge the regulations “apart from any concrete application that threatens imminent harm to [their] interests” would “fly in the face of Article III’s injury-in-fact requirement.” Id.
This Court has thus recognized the “elementary principle” that in the absence of class certification, plaintiffs are “not entitled to relief for people whom they do not represent.” Zepeda, 753 F.2d at 730 n.1. Were it otherwise, any individual plaintiff “could merely file an individual suit as a pseudo-private attorney general and enjoin the government in all cases.” Id. The Seventh Circuit has likewise squarely held that a district court may not “grant relief to non-parties” where an injunction limited to the party would provide complete relief, stating that a broader injunction “exceed[s] the district judge’s powers under Article III of the Constitution.” McKenzie v. City of Chicago, 118 F.3d 552, 555 & n.* (7th Cir. 1997); see also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”).
Under these principles, San Francisco and Santa Clara do not have standing to seek an injunction broader than necessary to remedy their own asserted injuries. And neither plaintiff can plausibly assert that an injunction that extends to other jurisdictions is necessary to remedy the plaintiffs’ claimed harm, which is entirely based on the withdrawal of money that would go to San Francisco and Santa Clara.
31

B. Equitable principles foreclose an injunction greater than necessary to provide complete relief to plaintiffs.
Even apart from the requirements of Article III, the district court’s injunction runs afoul of fundamental limitations on a court’s exercise of its equitable powers. The “Supreme Court has cautioned that ‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs’ before the Court.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Thus, “[i]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification.” Id. (quoting Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996)); see also Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469, 1480 (9th Cir. 1994) (vacating injunction insofar as it applied to persons other than the plaintiff).
In Los Angeles Haven Hospice, this Court agreed with the district court that a Department of Health and Human Services regulation was facially invalid, but nonetheless vacated an injunction insofar as it barred the Department of Health and Human Services from enforcing the regulation against entities other than the plaintiff. The Court recognized that relief benefitting parties not before the Court is authorized only “if such broad relief is necessary to give prevailing parties the relief to which they are entitled.” Los Angeles Haven Hospice, 638 F.3d at 664 (citing Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)).
32

Similarly, in Virginia Society for Human Life, Inc. v. Federal Election Commission, 263 F.3d 379 (4th Cir. 2001), the Fourth Circuit vacated an injunction that precluded the Federal Election Commission from enforcing, against any entity, a regulation found to have violated the First Amendment. The court explained that an injunction covering the plaintiff “alone adequately protects it from the feared prosecution,” and that “[p]reventing the FEC from enforcing [the regulation] against other parties in other circuits does not provide any additional relief to [the plaintiff].” Id. at 393.
As this Court has also recognized, “nationwide injunctions ‘have a detrimental effect by foreclosing adjudication by a number of different courts and judges.’ ” Los Angeles Haven Hospice, 638 F.3d at 664 (quoting Califano, 442 U.S. at 702). “[A]llowing only one final adjudication deprives the Supreme Court of the benefit it receives from permitting multiple courts of appeals to explore a difficult question before it grants certiorari.” Id. (citing United States v. Mendoza, 464 U.S. 154, 160 (1980)); see also Virginia Soc’y for Human Life, 263 F.3d at 393 (permitting nationwide injunction “would ‘substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.’ ” (quoting Mendoza, 464 U.S. at 160)). Here, the same legal issues have been presented in three other lawsuits (one of which the district judge here dismissed for lack of standing), but a nationwide injunction effectively renders that litigation meaningless. See City of Chelsea v. Trump, No. 17-cv-10214 (D. Mass.); City of Seattle v. Trump, No. 17-cv-497 (W.D. Wash.); City
33

of Richmond v. Trump, No. 17-cv-1535, 2017 U.S. Dist. LEXIS 133422 (N.D. Cal. Aug. 21, 2017).
In addition, nationwide injunctions provide plaintiffs all the benefits of a class action without any of the burdens or obligations. Once a single plaintiff prevails, the district court issues the relief that might have been appropriate if it had certified a class of all affected parties. But insofar as the federal government prevails, it gains none of the benefits of prevailing in a class action and, in particular, cannot preclude other plaintiffs from filing suit to relitigate the same issues.
C. The district court’s analysis cannot be reconciled with binding precedent.
The district court did not even purport to apply the longstanding principle that it lacks authority to enter an injunction broader than necessary to afford relief to the plaintiffs. Instead, the district court stated that “[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here, a nationwide injunction against the defendants other than President Trump is appropriate.” SJ Order 28 [ER 31]; see also PI Order 48 [ER 99] (similar). This conclusion cannot be reconciled with the cases discussed above: in Los Angeles Haven Hospice, for example, this Court affirmed the district court’s holding that a regulation was facially invalid, but vacated the imposition of an injunction extending beyond the plaintiff. See Los Angeles Haven Hospice, 638 F.3d at 665.
34

The two cases relied on by the district court are inapposite. In Califano v. Yamasaki, the Supreme Court determined that the district court had not abused its discretion in certifying a nationwide class. Califano, 442 U.S. at 703. The Court did not remotely suggest that a nationwide injunction would be warranted in the absence of class certification, much less that a nationwide injunction should be afforded as a matter of course whenever a plaintiff succeeds on a facial challenge. To the contrary, the Court’s analysis was entirely focused on the class-certification question, as evidenced by the sentence upon which the district court in this case relied: “Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Id. at 702 (emphasis added); cf. SJ Order 28 [ER 31] (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff.” (alteration in original)).
Even in the context of class certification (as opposed to relief in the absence of class certification), the Supreme Court cautioned that “a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts.” Califano, 442 U.S. at 702-03. And as noted above, the Supreme Court held in Alvarez that in the absence of class certification, plaintiffs lack authority to seek relief on behalf of parties not before the court. Alvarez, 558 U.S. at 93.
35

In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam), a lawsuit brought by two States, this Court declined to stay a nationwide temporary restraining order regarding a prohibition on entry into the United States of certain categories of individuals. The Court emphasized the stay posture and pointed out that it need not conclusively resolve the issue of the proper geographic scope of the injunction. Id. at 1167. And the Court concluded that “the Government has not proposed a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.” Id. That case thus represents, at most, an application of the principle that injunctive relief that benefits third parties can be awarded when such relief is necessary to provide complete relief to the plaintiffs. See Bresgal, 843 F.2d at 1170-71 (“[A]n injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.” (emphasis in original)). As noted above, that principle has no application here, as neither San Francisco nor Santa Clara can plausibly argue that they have a cognizable legal interest in federal grants awarded to other jurisdictions across the country.
36

CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed.
Respectfully submitted, CHAD A. READLER
Acting Assistant Attorney General BRIAN STRETCH
United States Attorney
MARK B. STERN s/ Daniel Tenny DANIEL TENNY BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7215 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-1838 daniel.tenny@usdoj.gov
DECEMBER 2017
37

STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, appellants state that they know of no related case pending in this Court, other than the cases as to which a consolidation motion is pending.
s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 9,248 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF SERVICE I hereby certify that on December 18, 2017, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Daniel Tenny Daniel Tenny

 
 Case Nos. 17-16886, 17-16887, 17-17478, 17-17480 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Appellee,
v.
DONALD J. TRUMP, et al., Defendants-Appellants.
COUNTY OF SANTA CLARA, Plaintiff-Appellee,
v.
DONALD J. TRUMP, et al., Defendants-Appellants.

)

)

)

)

Nos. 17-16886, 17-17478

)

U.S. District Court for Northern

)

California, San Francisco

)

No. 3:17-cv-00485-WHO

)

)

)

)

)

)

Nos. 17-16887, 17-17480

)

U.S. District Court for Northern

)

California, San Francisco,

)

No. 3:17-cv-00574-WHO

)

BRIEF OF AMMIICCII CURIAE THE STATES OF WEST VIRGINIA, LOUISIANA AND 9 OTHER STATES IN SUPPORT OF DEFENDANTS-
APPELLANTS

PATRICK MORRISEY ATTORNEY GENERAL OF WEST VIRGINIA Erica N. Peterson Assistant Attorney Genneerral Counsel offRecord Office of the Attorney General State Capitol Building 1, Room 26-E Charleston, WV 25305 Telephone: (304) 558-2021 Email: erica.n.peterson@wvago.gov Counselffor amicus curiae State off WWeest VViirrgginia

JEFF LANDRY ATTORNEY GENERAL OF LOUISIANA Elizabeth Baker Murrill Solicitor Genneerral Office of the Attorney General 1885 N. 3rrdd Street Baton Rouge, LA 70802 Telephone: (225) 326-6766 Email: murrille@ag.louisiana.gov Counselffor amicus curiae State off Louisiana

TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii INTEREST AND IDENTITY OF AMIICI .................................................................1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................5
I. The Order Can Be Constitutionally Applied Under The Spending Power .......5 II. The Order And The Act Do Not Violate The Tenth Amendment .................10 CONCLUSION………………………...…………………………........................17

TABLE OF AUTHORITIES
Cases
Arizona v. United States, 567 U.S. 387 (2012)....................................................................................... 15, 16
Bond v. United States, 564 U.S. 211 (2011)................................................................................................2
Chamber off Commerce off U.S. v. WWhhiittiing, 563 U.S. 582 (2011)..............................................................................................16
City offNew YYoorrk v. United States, 179 F.3d 29 (2d Cir. 1999) ...................................................................................13
FERC v. Mississippi, 456 U.S. 742 (1982)..............................................................................................15
Foti v. City offMenlo Parrkk, 146 F.3d 629 (9th Cir. 1998) ..................................................................................5
Hodel v. VViirrgginia Surface Mining & Reclamation Ass’'n, 452 U.S. 264 (1981)..............................................................................................15
Hotel & Motel Ass’'n off Oakland v. City off Oakland, 344 F.3d 959 (9th Cir. 2003) ..................................................................................5
Massachusetts v. United States, 435 U.S. 444 (1978)................................................................................................9
Members off City Council v. TTaaxxppaayersffor VViinnccent, 466 U.S. 789 (1984)................................................................................................5
New YYoorrk v. United States, 505 U.S. 144 (1992)................................................................................... 2, 11, 12
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)....................................................................................................9
Prriintz v. United States, 521 U.S. 898 (1997)................................................................................. 11, 12, 13
Reno v. Condon, 528 U.S. 141 (2000)....................................................................................... 13, 14
Sabri v. United States, 541 U.S. 600 (2004)................................................................................................7
ii

TABLE OF AUTHORITIES (continued)
NFIB v. Sebelius, 567 U.S. 519 (2012)................................................................................................9
South Carolina v. Baker, 485 U.S. 505 (1988)..............................................................................................14
South Dakota v. Dole, 483 U.S. 203 (1987)............................................................................................3, 8
Toll v. Moreno, 458 U.S. 1 (1982)..................................................................................................15
United States v. Butler, 297 U.S. 1 (1936)....................................................................................................8
United States v. Salerno, 481 U.S. 739 (1987)................................................................................................5
WWaash. State Grange v. WWaash. State Republican Parrtty, 552 U.S. 442 (2008)................................................................................................5
Statutes
8 U.S.C. § 1373 ................................................................................................ passim U.S. Const. amend. X...............................................................................................11 U.S. Const. art. I, § 8....................................................................................... 7, 8, 15 U.S. Const. art. VI, cl. 2 ...........................................................................................15
Rules
Fed. R. App. P. 29......................................................................................................1
Other Authorities
Executive Order 13768, "“Enhancing Public Safety in the Interior of the United States”" (the "“Order”"). Exec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017)...................................................................................................1, 3
Jeffrey T. Renz, WWhhaat Spending Clause? (Or the Presidenntt’'s Parraammour): An Examination off the VViieews offHaammilton, Madison, and Story on Article I, Section 8, Clause I off the United States Constitution, 33 J. Marshall L. Rev. 81 (Fall 1999)...................................................................8
iii

TABLE OF AUTHORITIES (continued)
Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, 23 Op. O.L.C. Supp. (May 18, 1999) ..............................................16
The Attorney General, Memorandum for all Department Grant-Making Components, Implementation offExecutive Order 13768, Enhancing Public Safety in the Interior offthe United States (May 22, 2017)............................ 6, 7, 9
iv

INTEREST AND IDENTITY OF AMMIICCII
The States of West Virginia, Louisiana, Alabama, Arkansas, Florida, Kansas, Nevada, Ohio, Oklahoma, South Carolina, and Texas file this brief under Rule 29(a) of the Federal Rules of Appellate Proocceedduurree.1! Amici States have at least two important interests in this appeal, which concerns the district courrtt’'s order preliminarily enjoining Section 9(a) of President Trumpp’'s Executive Order 13768, "“Enhancing Public Safety in the Interior of the United States”" (the "“Order”"). Exec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).22
First, as the chief legal officers of their States, the undersigned have an important interest in complying with federal immigration law and instructing state and local law enforcement to do the same. Cities and localities that obstruct cooperation on immigration enforcement between federal and local officials—socalled "“sanctuary jurisdictions”"—undermine the rule of law and deprive law enforcement of the tools necessary to enforce the law effectively. Sanctuary jurisdictions can cause harm to neighboring States by making it easier for people who are not lawfully in this country and have committed civil or criminal offenses
11 A State may "“file an amicus-curiae brief without the consent of the parties or leave of court.”" Fed. R. App. P. 29(a)(2). 22 Amici States are aware that Appellants have also appealed the district courrtt’'s order granting summary judgment (Nos. 17-17478 and 17-17480) and that there is a pending motion to consolidate the appeals. The arguments presented in this brief apply equally to those appeals.
1

to evade law enforcement and travel out-of-state. For instance, the City of Baltimore, which has adopted sanctuary city policies, is a significant source of illegal drugs flowing into the Eastern Panhandle of West Virginia. Sanctuary policies deprive jurisdictions of important tools that could assist with preventing such out-of-state drug trafficking.
Second, the States have a significant interest in ensuring that federal immigration policy, including the directives in the Order, is consistent with the separation of powers and federalism principles inherent in our Constitution. Those federalism principles both protect the sovereignty of the States and "“secure[] to citizens the liberties that derive from the diffusion of sovereign power.”" See, e.g., Bond v. United States, 564 U.S. 211, 221 (2011) (quoting New YYoorrk v. United States, 505 U.S. 144, 181 (1992)).
Amici States respectfully submit that the district court erred in issuing a preliminary injunction enjoining implementation of the Order. Plaintiffs cannot succeed on the merits of their claim that the Order is facially unconstitutional under principles of federalism and separation of powers. When analyzed under both the Spending Power and the Tenth Amendment, there are ways that the Order—which authorizes the Attorney General or Secretary of Homeland Security to place conditions on the Stateess’' voluntary receipt of federal grant funds—can be enforced with full respect for the role of the States in our constitutional structure.
2

SUMMARY OF ARGUMENT Appellees have mounted a facial challenge to the constitutionality of an Executive Order concerning immigration enforcement—an area of the law where Congress and the President wield significant constitutional power. The Order directs the Attorney General and Secretary of the Department of Homeland Security ("“Secretary”"), "“in their discretion and to the extent consistent with law”" to "“ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants. . . .”" Exec. Order No. 13768, 82 Fed. Reg. at 8,801 (emphasis added). Section 1373 (the "“Act”"), in turn, provides that a State "“may not prohibit, or in any way restrict, any government entity from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”" 8 U.S.C. § 1373(a). Appellees cannot meet their heavy burden to show that the Order is unconstitutional in all its applications. The Order is not unconstitutional under the Spending Clause. The federal government may place conditions on receipt of federal grant money so long: (1) Congress legislates to promote the general welfare; (2) the States have clear notice of the relevant grant conditions; (3) the conditions relate to the purposes for which the grant issues; and (4) the inducement to accept the grant is not coercive. South Dakota v. Dole, 483 U.S. 203, 206–-08 (1987). While amici
3

States take no position on whether any particular grant program meets these criteria, Appellees cannot demonstrate that the Order is unconstitutional in all applications. That is because Dole provides a well-established—and legally permissible— framework for the federal government to attach conditions on grants to the States consistent with law. Therefore, while Appellees could bring an as-applied challenge if the federal government were to exceed its power in denying particular sources of funding to the States, this facial challenge must fail because the Order could be constitutional as applied to programs that satisfy the Dole framework.
Appellees also cannot show that the Order is unconstitutional under the Tenth Amendment. The Tenth Amendment protects our system of dual sovereignty by prohibiting the federal government from compelling States and state and local officials to administer federal programs. But the Act does not require the States to do anything. It merely displaces state laws that directly conflict with federal immigration policy by prohibiting voluntary communication between local law enforcement officials and federal officials. To the extent that the States voluntarily accept federal grant money in exchange for compliance with federal immigration law—including the Order—the Order does not conscript the State or its officials into carrying out federal purposes. Accordingly, Appelleeess’' facial challenge to the Order must fail.
4

ARGUMENT I. The Order Can Be Constitutionally Applied Under The Spending
Poweerr. Appellees argue that the Order is facially unconstitutional because it purportedly represents a new and invalid condition on Statee’'s receipt of federal funds. But that argument fails because Congress may place certain conditions on the Stateess’' receipt of federal funds pursuant to the "“spending power”" in Article I, Section 8, clause 1 of the Constitution—and here, the Order can be applied consistent with that power. Appellees have chosen the heavy burden of raising a facial challenge to the Order. Such challenges will succeed only if the government action in question is "“unconstitutional in all of its applications.”" WWaash. State Grange v. WWaash. State Republican Parrtty, 552 U.S. 442, 449 (2008). In other words, "“the challenger must establish that no set of circumstances exists under which the [statute] would be valid.”" Hotel & Motel Ass’'n off Oakland v. City off Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see also Foti v. City off Menlo Parrkk, 146 F.3d 629, 635 (9th Cir. 1998) (a statute is facially unconstitutional if it would be invalid "“in every conceivable application”") (quoting Members off City Council v. Taxpayers ffor VViinncceent, 466 U.S. 789, 796 (1984)). Appellees cannot satisfy that demanding standard here. As an initial matter, the text of the Order itself contains important caveats that cabin the Ordeerr’'s scope and ensure that officers acting pursuant to the Order exercise
5

their authority within the parameters of federalism and the separation of powers. First, the Order expressly applies only to grant programs where the Attorney General or Secretary are permitted by law to impose conditions on the Stateess’' receipt of federal grant funds. Specifically, Section 9(a) directs that "“the Attorney General and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with [the Act] are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”" 82 Fed. Reg. at 8,801. The Attorney Generraall’'s Memorandum interpreting the Order confirms its narrow scope. This Memorandum explains that the Order "“will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security; and not to other sources off ffeederalffunnddiinngg.”.3' Significantly, this language ensures that the Order could not be interpreted to deny federal funding to States under programs administered by other departments or agencies, such as funds for education, highways, or Medicaid—and should the federal government ever attempt to enforce it in one of these contexts, Appellees (or others) could seek as-applied relief against that unlawful interpretation.
33 The Attorney General, Memorandum for all Department Grant-Making Components, Implementation off Executive Order 13768, Enhancing Public Safety in the Interior offthe United States 1 (May 22, 2017) (emphasis added).
6

Second, the Order applies only "“to the extent consistent with law.”" Section 9 provides that the Ordeerr’'s purpose is "“to ensure, to the fullest extent of the law, that a State or a political subdivision of a State, shall comply with”" the Act. Section 9(a) further provides that the Attorney General and the Secretary shall make eligibility determinations and determine what qualifies as a sanctuary jurisdiction only "“to the extent consistent with law.”" Also, the Attorney Generraall’'s Memorandum confirms that the Order does not contemplate grant conditions beyond those authorized by law, explaining that the Order "“does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitationn”" or "“purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary . . . in any respect.44 The Order is thus expressly limited to constitutional applications only.
Further, Congress and the President have tools to apply the Order consistent with the Constitution. Article 1, Section 8 of the Constitution provides that "“Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”" U.S. Const. art. I, § 8, cl. 1. While the clause, sometimes called the Spending Clause, speaks only of the power to tax, the Supreme Court has interpreted it to include an implicit power to appropriate funds as well. See, e.g., Sabri v. United
44 See supra n.3 at 1–-2. 7

States, 541 U.S. 600, 605 (2004); Dole, 483 U.S. at 206. Since the Founding, however, there has been debate about whether, and to what extent, that provision serves as a basis for Congress to appropriate money for purposes not part of Congreessss’'s enumerated powerrss..5' The modern view adopted by the Supreme Court is that "“the power of Congress to authorize the expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”" United States v. Butler, 297 U.S. 1, 66 (1936). To the contrary, Congress may use its spending power "“to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.”" Dole, 483 U.S. at 206 (internal quotation marks and citation omitted).
Nevertheless, in order to mitigate the federalism concerns associated with that view, the Supreme Court has placed four limits on Congressss’' ability to place conditions on federal funding to the States. Dole, 483 U.S. at 207–-08. First, Congress must legislate "“in pursuit of ‘'tthe general welffaarree..’'”" Id. (quoting U.S. Const. art. I, § 8, cl. 1. Second, if Congress places conditions on "“the Statess’' receipt of federal funds, it ‘'mmust do so unambiguously . . ., enabl[ing] the States to exercise
55 See Jeffrey T. Renz, WWhhaat Spending Clause? (Or the Presidenntt’'s Parraammour): An Examination off the VViieews offHaammilton, Madison, and Story on Article I, Section 8, Clause I off the United States Constitution, 33 J. Marshall L. Rev. 81, 103–-06 (Fall 1999); United States v. Butler, 297 U.S. 1 (1936).
8

their choice knowingly, cognizant of the consequences of their particippaattiioonn..’'”" Id. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, conditions must be related "“to the federal interest in particular national projects or programs.”" Id. (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). Fourth, the conditions cannot be coercive. Id.; see also NFIB v. Sebelius, 567 U.S. 519, 578–-79 (2012).
The Order is not facially unconstitutional under the Dole framework. As explained above, the Order cannot deny States funds under grant programs unrelated to the federal governmeenntt’'s interest in immigration enforcement because the Order applies only to programs administered by the Attorney General or the Secretary. And because the Order permits the Attorney General and Secretary to deny funds only as permitted by law, it does not—as the Attorney Generraall’'s Memorandum explained— "“call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.”"66 Thus, assuming that Congress complies with the Dole factors in a particular grant program and has authorized the Attorney General or the Secretary to administer that program, the Order can be applied consistent with the federal governmeenntt’'s Spending Power. In such situation, States would retain the ability to "“voluntarily and knowingly accept[] the terms of the contract.”" NFIB, 567 U.S. at 577.
66 Supra n.3 at 1–-2. 9

While amici take no position on whether any particular existing grant program meets the Dole factors, it is clear that Congress and the President can act in a manner that permits the Order to be constitutionally applied. Appelleeee’'s facial challenge must fail.
II. The Order And The Act Do Not Violate The Tenth Amendment. Appellees argue that the Order violates the Tenth Amendment by requiring
the Attorney General to "“take appropriate action”" against States that violate 8 U.S.C. § 1373. That argument also fails. Section 1373 provides that States "“may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”" Id. The Tenth Amendment prohibits the federal government from commandeering States by ffoorrccing them to administer a federal regulatory regime or conscripting state officers to do the same. But that is not what Congress did. Rather, the Order provides States with voluntary inducements to comply with federal law. And for its part, the Act simply displaces or preempts state laws that prohibit localities or local law enforcement officials from voluntarily communicating with federal officials, with a goal to further the comprehensive federal immigration regime. Congress thus acted within its enumerated powers and under the Supremacy Clause to preempt state laws that stand as obstacles to the creation of this uniform policy.
10

A. The Tenth Amendment provides that "“[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”" U.S. Const. amend. X. The Supreme Court has interpreted this language to provide that Congress cannot "“require the States to govern according to Congressss’' instructions.”" New YYoorrk v. United States, 505 U.S. 144, 162 (1992). Congress also cannot "“conscript[] the Statee’'s officers directly”" to administer a federal program. Printz v. United States, 521 U.S. 898, 935 (1997).
In New YYoorrk and Prriinntz, the Supreme Court explained that these principles protect the operation of dual sovereignty—or in other words, the Tenth Amendment ensures that the federal government and the States each remain politically accountable to the people for their own actions. In New YYoorrk, the Court held that the Tenth Amendment prohibits Congress from requiring States to either take possession of nuclear waste or regulate the disposal of such waste within the State. New YYoorrk, 505 U.S. at 153–-54. The Court reasoned that when the federal government conscripts States or state officers into administering a federal program, political accountability is diminished. New YYoorrk, 505 U.S. at 168–-69 ("“it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision”"). In part, the Court also rested its decision on the failed experience of the
11

Articles of Confederation under which Congress could only regulate by compelling States to act. Id. at 163–-66.
Similarly, in Prriinntz, the Supreme Court held that the federal government cannot conscript state law enforcement officials into enforcing federal law. 521 U.S. at 935. The statute at issue there required state law enforcement officials to conduct background checks in connection with handgun transfers. Id. at 903. The Court rejected a purported distinction between making policy and enforcing or implementing it, and concluded that Congress could require the States neither to make law nor to enforce federal law. Id. at 928. As in New YYoorrk, the Court emphasized that the Tenth Amendment is designed to avoid the blurring of political lines of accountability. Id. at 930 (explaining that the law at issue would have allowed Congress to "“take credit for ‘'solvingg’' problems without having to ask their constituents to pay for the solutions with higher federal taxes,”" while putting the States "“in the position of taking the blame for [the programm’'s] burdensomeness and for its defects.”").
Under these principles, the Order does not commandeer the States or transform section 1373 into a commandeering provision. The Order operates by instructing the Attorney General and the Secretary, consistent with law, to condition the receipt of federal grant funds on compliance with section 1373. As already explained, the Order can be applied consistent with the Constitution where Congress
12

has given the Attorney General and the Secretary the authority to condition the Stateess’' receipt of federal grant funds so long as the grant program complies with the Dole framework. And because the Order itself is narrow in scope, it does not grant any authority that the Attorney General and Secretary would not otherwise have. Instead, the Order instructs the Attorney General and the Secretary to exercise their discretion under congressionally created grant programs in a particular way.
The Act itself does not commandeer the States in violation of the Tenth Amendment either. As the Second Circuit has correctly held, section 1373 does not compel States to administer a federal program nor does it conscript local officials into doing so. City off New YYoorrk v. United States, 179 F.3d 29, 35 (2d Cir. 1999). Instead, the Act "“prohibit[s] state and local governmental entities or officials only from directly restricting the voluntary exchange offimmmiiggration information with the [Immigration and Naturalization Service].”" Id. (emphasis added). Indeed, the Supreme Court expressly reserved in Printz the question of whether statutes requiring "“only the provision of information to the Federal Government”" can constitute commandeering. Prriinntz, 521 U.S. at 918.
Further, the commandeering principles from Priintz and New YYoorrk only apply where States are required "“in their sovereign capacity to regulate their own citizens”" or "“assist in the enforcement of federal statutes regulating private individuals.”" Reno v. Condon, 528 U.S. 141, 151 (2000). The Act does meet that definition of
13

commandeering because it does not require the State to regulate its own citizens, but simply preempts state policies that interfere with implementation of a federal regulatory regime.
Indeed, the Supreme Court has rejected Tenth Amendment challenges where Congress has regulated state activities but not attempted to use the sovereign power of the States to regulate individuals. For example, the Supreme Court rejected a Tenth Amendment challenge to a federal law prohibiting States from issuing unregistered bonds in furtherance of a federal policy discouraging tax evasion. South Carolina v. Baker, 485 U.S. 505, 514 (1988). The Court concluded that Congress had not attempted "“to use state regulatory machinery to advance federal goals”" but to regulate the State as any other entity. Id. at 514. To take another example, the Supreme Court rejected a Tenth Amendment challenge to a law prohibiting States from selling public information obtained from motor vehicle records. Reno, 528 U.S. at 151. In that case, the Court explained that the federal statute "“regulates the States as the owners of data bases”" to further a federal regulatory scheme related to privacy. Id. at 151. The statute, the Court explained, did not run afoul of the Supreme Courrtt’'s commandeering decisions because it did not require the State to regulate in its sovereign capacity or help enforce federal law. Id.
B. Finally, the Act is justified under the Supremacy Clause. When Congress acts pursuant to its enumerated powers (and within the bounds of the Tenth
14

Amendment), the laws it enacts become "“the Supreme Law of the Land”" and displace inconsistent state law. U.S. Const. art. VI, cl. 2. The federal government may exercise such power even though it may "“serve[] to ‘'ccurtail or prohibit the Stateess’' prerogatives to make legislative choices respecting subjects the States may consider immppoorrtatannt.t’.”' FERC v. Mississippi, 456 U.S. 742, 759 (1982) (quoting Hodel v. VViirrgginia Surface Mining & Reclamation Ass’'n, 452 U.S. 264, 290 (1981)). Nevertheless, Congress must make its intent to preempt clear, which it can do most directly by "“enacting a statute containing an express preemption provision.”" Arizona v. United States, 567 U.S. 387, 399 (2012).
It is beyond dispute that Congress has the enumerated power to enact a comprehensive immigration regime. The Constitution grants the federal government the power to "“establish an uniform Rule of Naturalization,”" U.S. Const. art I, § 8, and the "“inherent power as sovereign to control and conduct relations with foreign nations,”" Arizona, 567 U.S. at 395 (quoting Toll v. Moreno, 458 U.S. 1, 10 (1982)). Accordingly, the Supreme Court has recognized that the federal government has "“broad, undoubted power over the subject of immigration and the status of aliens.”" Id.
The means Congress has chosen here—displacement of state law—furthers the purpose of the comprehensive federal immigration regime by facilitating communication between state and federal officials on matters relating to citizenship
15

and immigration status. Indeed, this type of federal-state communication is an important part of the federal immigration system. Arizona, 567 U.S. at 411 ("“Consultation between federal and state officials is an important feature of the immigration system.”") (discussing 8 U.S.C. § 1373).77 The Act merely prevents States from prohibiting local law enforcement for voluntarily cooperating with the federal government—and displaces state policy choices that are inconsistent with Congreessss’'s purpose to ensure enforcement of the Natioonn’'s immigration laws.
7 Of course, States are not prohibited from enacting laws to implement Section 1373 that are consistent with the Actt’'s purposes. Congress made clear that it intended to "“displace inconsistent law.”" Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, 23 Op. O.L.C. Supp., at 7 (May 18, 1999), hattpp::////wwww.justice.gov/sites/ default/files/olc/opinions/attachments/2014/11/10/199 9-05-18-census-confidentiality.pdf (emphasis added). Congress has not attempted to enter the field of enforcement mechanisms for section 1373, meaning that States are free to create their own enforcement mechanisms consistent with the purpose of section 1373. See Chamber off Commerce off U.S. v. WWhhiittiing, 563 U.S. 582, 606–-07 (2011) (holding that a State could tailor specific sanctions for the violation of federal immigration laws in the absence of congressional prohibition on those sanctions).
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CONCLUSION The decision below should be reversed.

Respectfully submitted,
PATRICK MORRISEY ATTORNEY GENERAL
OF WEST VIRGINIA
/s/ Erica N. Peterson Erica N. Peterson
Assistant Attorney Geneerral Counsel offRecord Office of the Attorney General State Capitol Building 1, Room 26-E Charleston, WV 25305 Telephone: (304) 558-2021 Email: Erica.n.peterson@wvago.gov
Counsel ffoor amicus curiae State off WWeest VViirrgginia

JEFF LANDRY ATTORNEY GENERAL
OF LOUISIANA
/s/ Elizabeth Baker Murrill Elizabeth Baker Murrill Solicitor Genneerral Office of the Attorney General 1885 N. 3rd Street Baton Rouge, LA 70802 Telephone: (225) 326-6766 Email: murrille@ag.louisiana.gov
Counsel ffoor amicus curiae State off Louisiana

December 22, 2017

17

COUNSEL FOR ADDITIONAL AMIICCII

Steve Marshall Attorney General State of Alabama 501 Washington Ave Montgomery, AL 36130 (334) 242-7300
Leslie Rutledge Attorney General State of Arkansas 323 Center St. Little Rock, AR 72201 (501) 682-2007
Pamela Jo Bondi Attorney General State of Florida PL-01, The Capitol Tallahassee, FL 32399 (850) 414-3300
Derek Schmidt Attorney General State of Kansas 120 SW 10th Ave., 2nd Floor Topeka, KS 66612 (785) 296-2215
Adam Paul Laxalt Attorney General State of Nevada 100 North Carson Street Carson City, NV 89701 (775) 684-1100

Michael DeWine Attorney General State of Ohio 30 E. Broad St., 17th Floor Columbus, OH 43215 (614) 466-8980
Mike Hunter Attorney General State of Oklahoma 313 NE 21st Street Oklahoma City, OK 73105 (405) 521-3921
Alan Wilson Attorney General State of South Carolina P.O. Box 11549 Columbia, SC 29211 (803) 734-3970
Ken Paxton Attorney General State of Texas 300 W. 15th Street Austin, TX 78701 (512) 936-1700

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 3,802 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14point Times New Roman.

Date: December 22, 2017

/s/ Erica N. Peterson Erica N. Peterson Office of the West Virginia Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 E-mail: Erica.n.peterson@wvago.gov
Counsel for Amicus Curiae State of West Virginia

CERTIFICATE OF SERVICE I certify that on December 22, 2017, the foregoing document was served on the counsel of record for all parties through the CM/ECF system.

/s/ Erica N. Peterson Erica N. Peterson

December 22, 2017 Date

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Appellee,
v.

No. 17-17478
D.C. No. 3:17-cv-00485-WHO

DONALD J. TRUMP, President of the United States; JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States; ELAINE C. DUKE; UNITED STATES OF AMERICA,
Defendants-Appellants.

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2

SAN FRANCISCO V. TRUMP

COUNTY OF SANTA CLARA, Plaintiff-Appellee,
v.

No. 17-17480
D.C. No. 3:17-cv-00574-WHO

DONALD J. TRUMP, President of the United States; JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States; KIRSTJEN NIELSEN, Secretary of Homeland Security; ELAINE C. DUKE; MICK MULVANEY, Director, OMB; UNITED STATES OF AMERICA,
Defendants-Appellants.

OPINION

Appeal from the United States District Court for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted April 11, 2018 San Francisco, California
Filed August 1, 2018
Before: Sidney R. Thomas, Chief Judge, and Ferdinand F. Fernandez and Ronald M. Gould, Circuit Judges.
Opinion by Chief Judge Thomas; Dissent by Judge Fernandez

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SAN FRANCISCO V. TRUMP

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SUMMARY*

Separation of Powers/Executive Authority/Immigration
The panel (1) affirmed the district court’s grant of summary judgment in favor of the City and County of San Francisco and the County of Santa Clara in an action challenging Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” which directed the withholding of federal grants to so-called sanctuary jurisdictions; (2) vacated a nationwide injunction; and (3) remanded.
The Executive Order cross-references 8 U.S.C. § 1373, which prohibits government entities from themselves prohibiting the sharing of “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). Section 9 of the Executive Order provides that the Attorney General and the Secretary of the Department of Homeland Security, “in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
As a preliminary matter, the panel concluded that the Counties demonstrated standing to bring their action, and that the case was ripe for review.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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The panel held that, under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, the panel affirmed the district court’s grant of summary judgment to the City and County of San Francisco and the County of Santa Clara. However, given the absence of specific findings underlying the nationwide application of the injunction, the panel vacated the nationwide injunction and remanded for reconsideration and further findings.

Dissenting, Judge Fernandez concluded that the case is not ripe for review. Addressing the merits because the majority did so, Judge Fernandez also wrote that the district court’s failure to accord the Executive Order a fair enough reading resulted in its abusing its discretion when it issued the injunction.

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SAN FRANCISCO V. TRUMP

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COUNSEL

Chad Readler (argued), Acting Assistant Attorney General; Alex G. Tse, Acting United States Attorney; Mark B. Stern, Daniel Tenny, and Brad Hinshelwood, Appellate Staff; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Christine Van Aken (argued), Yvonne R. Meré, Ronald P. Flynn, Jesse C. Smith, Neha Gupta, Matthew S. Lee, Aileen M. McGrath, Sara J. Eisenberg, Mollie M. Lee, Tara M. Steeley, and Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for PlaintiffAppellee City and County of San Francisco.

Danielle L. Goldstein (argued), Adriana L. Benedict, Laura S. Trice, Julie Wilensky, Kavita Narayan, L. Javier Serrano, Greta S. Hansen, and James R. Williams, County Counsel; Office of the County Counsel, San Jose, California; Tejinder Singh, Sarah E. Harrington, and Kevin K. Russell, Goldstein & Russel P.C., Bethesda, Maryland; for Plaintiff-Appellee County of Santa Clara.

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OPINION

THOMAS, Chief Judge:

This appeal presents the question of whether, in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called “sanctuary” cities and counties. We conclude that, under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, we affirm the district court’s grant of summary judgment to the City and County of San Francisco and the County of Santa Clara (collectively, the “Counties”). However, given the absence of specific findings underlying the nationwide application of the injunction, we vacate the nationwide injunction and remand for reconsideration and further findings.

I

A

The United States Constitution exclusively grants the
power of the purse to Congress, not the President. U.S. Const. art. I, § 9, cl. 7 (Appropriations Clause)1; U.S. Const.

1 “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

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art. I, § 8, cl. 1 (Spending Clause).2 As Alexander Hamilton succinctly put it, Congress “commands the purse.” THE FEDERALIST, NO. 78. James Madison underscored the significance of that exclusive congressional power, stating, “[t]he power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” THE FEDERALIST, NO. 58.

Congress’s power to spend is directly linked to its power to legislate. “Incident to [the spending] power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’” South Dakota v. Dole, 483 U.S. 203, 206–07 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)).

On the other hand, as the Supreme Court has observed, “[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524 U.S. 417, 438 (1998). Aside from the power of veto, the President is without authority to thwart congressional will by canceling appropriations passed by Congress. Simply put, “the President does not have unilateral authority to refuse to spend the funds.” In re Aiken County, 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). And, “the President may not decline to follow a statutory mandate or prohibition simply because of policy objections.” Id. at 259.

2 “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

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The Separation of Powers was an integral part of the Founders’ design. The Constitution and its history evidence the “unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.” I.N.S. v. Chadha, 462 U.S. 919, 959 (1983). “The power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” Clinton, 524 U.S. at 439–40 (quoting Chadha, 462 U.S. at 951). Indeed, even when Congress specifically authorized the President’s action, the President’s attempt to exercise authority through a lineitem veto was deemed unconstitutional as antithetical to that “finely wrought” legislative process committed to Congress by the Constitution. Id. at 439. As Justice Kennedy has observed, if “the decision to spend [is] determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.” Id. at 451 (Kennedy, J., concurring).

B

With these Separation of Powers principles in mind, we turn to the question at hand. At issue in this appeal is Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” which was signed by the President on January 25, 2017—five days after his inauguration. Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (hereinafter “Executive Order” or “EO”). The Executive Order’s primary concern is “sanctuary jurisdictions,” which, in the President’s view, “willfully violate Federal law in an attempt to shield aliens from removal from the United States.” EO § 1. “The purpose of this order is to direct executive departments and agencies . . .

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to employ all lawful means to enforce the immigration laws of the United States.” EO § 1.

Most relevant for our consideration is § 9(a) of the Executive Order, which specifically addresses the federal government’s potential recourses against sanctuary jurisdictions. In its entirety, § 9 reads:

It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of the Department of Homeland Security (“DHS”)], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

(b) To better inform the public regarding the public safety threats associated with

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sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

Below, under the heading “General Provisions,” the Executive Order provides that it “shall be implemented consistent with applicable law and subject to the availability of appropriations.” EO § 18(b). The Executive Order crossreferences 8 U.S.C. § 1373, which prohibits government entities from themselves prohibiting the sharing of “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).

In sum, by its plain terms, the Executive Order directs the agencies of the Executive Branch to withhold funds appropriated by Congress in order to further the Administration’s policy objective of punishing cities and counties that adopt so-called “sanctuary” policies.

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C

For us, then, the question is whether the Executive Order violates the Separation of Powers, pursuant to which the Constitution committed the Spending power to Congress.

The President’s authority to act “must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Justice Jackson’s Youngstown concurrence provides the operative test in this context:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring).

In this instance, because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with § 1373, the President’s “power is at its lowest ebb.” Id. at

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637. And when it comes to spending, the President has none of “his own constitutional powers” to “rely” upon. Id.

Rather, the President has a corresponding obligation—to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. Because Congress’s legislative power is inextricable from its spending power, the President’s duty to enforce the laws necessarily extends to appropriations. Moreover, the obligation is an affirmative one, meaning that failure to act may be an abdication of the President’s constitutional role. As then-Assistant Attorney General William Rehnquist noted in 1969, “[w]ith respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.” Office of Legal Counsel, Memorandum Opinion on Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, at 8 (Dec. 1, 1969). And, even if the President’s duty to execute appropriations laws was once unclear, Congress has affirmatively and authoritatively spoken. 2 U.S.C. §§ 681–688 (establishing congressional oversight when the Executive defers budget authority).3

3 In enacting the cited provisions as part of 1974’s Congressional Budget & Impoundment Act, Congress acted “to restore responsibility for the spending policy of the United States to the legislative branch. . . . No matter how prudently Congress discharges its appropriations responsibility, legislative decisions have no meaning if they can be unilaterally abrogated by executive impoundments.” H.R. REP. NO. 93658, as reprinted in 1974 U.S.C.C.A.N. 3462, 3463; see also S. REP. NO. 93-688, as reprinted in 1974 U.S.C.C.A.N. 3504, 3572–3575 (collecting cases “consistently den[ying]” the Executive Branch’s attempts to refuse spending as a means “to achieve less than the full objectives and scope of programs enacted and funded by Congress”).

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Here, the Administration has not even attempted to show that Congress authorized it to withdraw federal grant moneys from jurisdictions that do not agree with the current Administration’s immigration strategies. Nor could it. In fact, Congress has frequently considered and thus far rejected legislation accomplishing the goals of the Executive Order.4 The sheer amount of failed legislation on this issue demonstrates the importance and divisiveness of the policies in play, reinforcing the Constitution’s “unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.” Chadha, 462 U.S. at 959. Not only has the Administration claimed for itself Congress’s exclusive spending power, it has also attempted to coopt Congress’s power to legislate.

Because the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with § 1373, there is no reasonable argument that the President has not exceeded his authority.

4 See Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015); Sanctuary City All Funding Elimination Act of 2015, H.R. 3073, 114th Cong. 2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. (2015); Improving Cooperation with States and Local Governments and Preventing the Catch and Release of Criminal Aliens Act of 2015, S. 1812, 114th Cong. (2015); Protecting American Citizens Together Act, S. 1764, 114th Cong. (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015); A Bill to Prohibit Appropriated Funds from Being Used in Contravention of Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, S. 80, 114th Cong. (2015).

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Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers. The district court properly entered summary judgment in favor of the Counties.5

II

The Administration argues that the Counties lack standing. Of course, our jurisdiction is limited to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy . . . [that] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

Standing exists only where the plaintiff demonstrates “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision

5 In granting summary judgment, the district court concluded that: (1) the Executive Order violated the Separation of Powers; (2) even if the President had acted within authority delegated to him by Congress, the congressional action would violate the Spending Clause; (3) the Executive Order violated the Tenth Amendment’s anti-commandeering principle; (4) the Executive Order is void for vagueness under the Fifth Amendment; and (5) the Executive Order infringed upon the Counties’ procedural due process rights. Given our resolution of the merits on the basis of the Separation of Powers, it is unnecessary for us to decide the merits of the other bases of the district court’s decision.

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will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007).

A

A “loss of funds promised under federal law[ ]satisfies Article III’s standing requirement.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015). Both San Francisco and Santa Clara rely heavily on federal funding, much of which is distributed through the State of California. Approximately $1.2 billion of San Francisco’s yearly budget of $9.6 billion comprises federal funds. Santa Clara received approximately $1.7 billion in federal and federally dependent funds in the 2015–2016 fiscal year, totaling about 35% of the County’s total revenue.

Both counties have in place policies intended to protect immigrant communities and to encourage community policing measures. San Francisco is a self-described “City and County of Refuge.” S.F. Admin. Code § 12H.1. San Francisco prohibits city and county entities and employees from

us[ing] any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such [confidential, identifying information about an individual] unless such assistance is required by Federal or State statute, regulation, or court decision.

S.F. Admin. Code § 12H.2. Prior to July 2016, the San Francisco Administrative Code prohibited city employees

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from sharing information about immigration status, but the restriction was removed out of concern for its potential conflict with 8 U.S.C. § 1373.

Since 2010, Santa Clara has barred its employees from using County resources to communicate with Immigrations and Customs Enforcement (“ICE”) regarding any information collected in the course of providing critical services or benefits. Cty. of Santa Clara Bd. of Supervisors Resolution No. 2010-316, “Advancing Public Safety and Affirming the Separation Between County Services and the Enforcement of Federal Civil Immigration Law” (June 22, 2010). The County also prohibits employees from “initiat[ing] any inquiry or enforcement action based solely on the individual’s actual or suspected immigration status, national origin, race, ethnicity, and/or inability to speak English” and from using County resources to pursue an “individual solely because of an actual or suspected civil violation of federal immigration law.” Id.

In sum, the Counties have policies in place that arguably would qualify for grant withdrawal under the Executive Order, with potentially devastating fiscal consequences. They have demonstrated a likely “loss of funds promised under federal law.” Organized Vill. of Kake, 795 F.3d at 965.

B

The Administration argues that there is no “imminent” injury because the Executive Order may not be enforced. Massachusetts v. EPA, 549 U.S. at 517. We shall discuss the threat of enforcement later. However, the possibility of nonenforcement does not mean that the Counties lack standing.

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Virginia v. American Booksellers Association is illustrative. There, the Court was “not troubled” by the possibility that a law would not be enforced against the plaintiffs. 484 U.S. 383, 393 (1988). It was enough that, if the plaintiffs’ “interpretation of the statute [was] correct,” the plaintiffs would face serious repercussions in the absence of “significant and costly compliance measures.” Id. at 392. There, as here, the parties disputed the scope of the challenged measure, with the plaintiffs anticipating its application to them and the defendants arguing for a narrower reading. Id. at 390. There, too, as is the case here, the defendant ostensibly conceded the measure’s unconstitutionality if the plaintiffs’ interpretation was given effect. Id. at 393.

Here, the case for standing is even stronger than in American Booksellers. Like the plaintiffs in American Booksellers, the Counties have demonstrated that, if their interpretation of the Executive Order is correct, they will be forced to either change their policies or suffer serious consequences. As we will discuss later, the Administration has consistently evinced its intent to enforce the Executive Order, and it has made clear that the Counties, and the State of California, are likely targets. There is no dispute between the parties that, provided the Counties’ injuries are sufficiently “concrete” and “imminent,” the Counties can satisfy causation and redressability. Because a loss of funds promised under federal law satisfies Article III’s standing requirement, the Counties have met their burden to show standing.

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III

The Administration also contends that this case is not ripe for review. The Administration’s argument is premised entirely on our decision in Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000). In Thomas, we summarized three factors to be used “[i]n evaluating the genuineness of a claimed threat of prosecution”: (1) “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question”; (2) “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings”; and (3) “the history of past prosecution or enforcement under the challenged statute.” Id. at 1139 (quoting San Diego Cty. Gun Rights Comm’n v. Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996)).

As to the first factor, as we have discussed, the Counties have demonstrated that their policies are presently in conflict with the Administration’s federal immigration policy as described in the Executive Order. We therefore conclude that the Counties have “articulated . . . concrete plan[s]” to violate the law as asserted in the Executive Order. Thomas, 220 F.3d at 1139 (internal quotation marks omitted).

As to the second factor, there is no doubt that the prosecuting authorities “have communicated specific warning[s and] threat[s] to initiate proceedings.” Id. The Administration quickly and repeatedly announced that the Executive Order would eradicate sanctuary policies by authorizing the wholesale defunding of cities that do not assist the Administration in enforcing its hardline immigration policy. The day that the Executive Order went into effect, then-Press Secretary Sean Spicer said at the daily White House press briefing, “We’re going to strip federal

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grant money from sanctuary states and cities that harbor illegal immigrants.” Priscilla Alvarez, Trump Cracks Down on Sanctuary Cities, THE ATLANTIC (Jan. 25, 2017), http://www.theatlantic.com/politics/archive/2017/01/trumpcrack-down-sanctuary-city/514427. The President echoed Press Secretary Spicer’s statements the next day at the Congressional Republicans Retreat, where he discussed the Executive Order as a “first step[] in our immigration policy, . . . at long last, cracking down on sanctuary cities.” CSPAN, President Trump’s Remarks at Congressional Republican Retreat (Jan. 26, 2017), http://www.cspan.org/video/?422829-1/president-trump-tellscongressional-republicans-now-deliver. A White House Press Release issued days later summarized the Executive Order: “President Trump signed an executive order to ensure that immigration laws are enforced throughout the United States, including halting federal funding for sanctuary cities.” Press Release, White House, “President Trump’s First Week of Action” (Jan. 28, 2017).

On February 1st, Press Secretary Spicer was unequivocal: “the President has been very clear through his executive order that federal funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary cities.” Press Briefing, White House Press Secretary Sean Spicer (Feb. 1, 2017). Days later, the President described defunding as a “weapon” to be deployed against sanctuary cities to force them to change their policies. Bill O’Reilly Interview with President Donald J. Trump (Feb. 5, 2017), transcript available at http://transcripts.cnn.com/transcripts/1702/05/cnr.05.html. The Attorney General was more specific in his public statements, stating that noncompliance with § 1373 would result in “withholding grants, termination of grants, and disbarment or ineligibility for future grants.” Press Briefing,

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White House Press Secretary Spicer with Attorney General Sessions (March 27, 2017).

The State of California has been a specific target of the Administration’s anti-sanctuary cities policies from the Administration’s beginning. In a February 5, 2017 interview with Bill O’Reilly, President Trump said, “I’m very much opposed to sanctuary cities. . . If we have to defund, we give tremendous amounts of money to California . . . . California in many ways is out of control.” Bill O’Reilly Interview with President Donald J. Trump. ICE has designated California, Santa Clara, and San Francisco as jurisdictions that “Restrict Cooperation with ICE.” ICE, Enforcement & Removal Operations: Weekly Declined Detainer Outcome Report for Recorded Declined Detainers Feb. 11–Feb. 17, 2017 § 3. And the Attorney General penned an op-ed holding San Francisco up as an example of a sanctuary city that ought to “re-evaluate [sanctuary] policies.” Jeff Sessions, John Culberson, Dennis Herrera, & Jose Antonio Vargas, 4 Voices: Are Sanctuary Cities Good for the Community?, SAN FRANCISCO CHRONICLE (Apr. 7, 2017). Indeed, the district court noted that California and its cities, especially San Francisco, were visible targets of the Administration’s intent to defund sanctuary jurisdictions.

As to the third factor, DOJ has identified three grants historically conditioned on compliance with § 1373, all of which are law enforcement-related: the State Criminal Alien Assistance Program grant; the Edward Byrne Memorial Justice Assistance grant; and the Community Oriented Policing Services grant. Thus, the Counties have shown a “history of past prosecution or enforcement” tied to compliance with 8 U.S.C. § 1373, the statute relied upon as

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authorization for the Executive Order. Thomas, 220 F.3d at 1139.

In sum, the Counties have satisfied the factors we identified in Thomas to evaluate the genuineness of a claimed threat of prosecution. Given the severe potential for harm and the likelihood of prosecution, the controversy is ripe for adjudication.

IV

On the merits, the Administration argues that the Executive Order is all bluster and no bite, representing a perfectly legitimate use of the presidential “bully pulpit,” without any real meaning—“gesture without motion,” as T.S. Eliot put it. Looking to its plain language, the Administration contends, the Executive Order is merely a directive to DHS and DOJ to condition a limited number of grant programs—as of now, three—on compliance with § 1373.6 However, even if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration’s interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration’s current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.

6 The Administration has been unable to identify any grant programs it may condition on compliance with § 1373 except for those programs that were so conditioned prior to issuance of the Order.

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A

Executive orders are unlike both statutes and other agency actions. In contrast to the many established principles for interpreting legislation, there appear to be few such principles to apply in interpreting executive orders. Compare Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (“[F]or purposes of this case we shall assume, arguendo, that the severability standard for statutes also applies to Executive Orders.”), and F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (“We know of no precedent for applying [the canon of constitutional avoidance] to limit the scope of an authorized executive action.”), with Ex parte Mitsuye Endo, 323 U.S. 283, 298 (1944) (“We approach the construction of Executive Order No. 9066 as we would approach the construction of legislation in this field.”).

However, one interpretive principle is clear, and its application is dispositive. “As is true of interpretation of statutes, the interpretation of an Executive Order begins with its text,” which “must be construed consistently with the Order’s ‘object and policy.’” Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)).

B

Section 9(a) orders “the Attorney General and the Secretary” to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” At minimum, regardless of the potential

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ambiguity of the term “sanctuary jurisdictions” throughout the Executive Order, this particular provision threatens defunding those jurisdictions that do not comply with § 1373.

“Under the doctrine of ‘inclusio unius est exclusio alterius’ (the inclusion of one is the exclusion of the other), ‘when a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.’” United States v. Terrence, 132 F.3d 1291, 1294 (9th Cir. 1997) (alteration omitted) (quoting Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312–13 (9th Cir. 1992)). The canon applies here. By specifically excluding grants “deemed necessary for law enforcement purposes,” the Executive Order directs the Attorney General and the Secretary to cut all other grant programs.

This interpretation is supported by a reading of § 9(a) in the broader context of § 9, directed toward ensuring States’ and localities’ compliance with § 1373. Section 9(c) directs “[t]he Director of the Office of Management and Budget . . . to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.” There would be little reason for the Director to perform such a comprehensive review if the Executive Order meant only that DOJ should continue to do what it has been doing all along. Moreover, the Executive Order, at minimum, addresses both DOJ and DHS grants, and the existing grant programs conditioned on compliance with § 1373 are administered solely by DOJ. All grants are in play. On its face, the Executive Order threatens to withdraw all federal grants from jurisdictions the Administration deems noncompliant with § 1373, except for those “deemed necessary for law enforcement purposes.” EO § 9(a). It

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would be incongruous for us to say it does not mean what it says.

C

Additionally, the Administration raises a textual argument, solely dependent on three words: “consistent with law.” The Attorney General and Secretary are directed to condition grants on compliance with § 1373 “in their discretion and to the extent consistent with law.” EO § 9(a).

Savings clauses are read in their context, and they cannot be given effect when the Court, by rescuing the constitutionality of a measure, would override clear and specific language. See, e.g., Shomberg v. United States, 348 U.S. 540, 547–48 (1955) (refusing to “nullify” “clear legislative purpose” to give effect to a savings clause). This principle is neither controversial nor surprising: “It is a commonplace of statutory construction that the specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)).

The Administration cites Building & Construction Trades Department v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), for support. In that case, the D.C. Circuit considered an executive order with a savings clause, rejecting the plaintiffs’ argument that “notwithstanding the President’s instruction that the Executive Order be applied only ‘[t]o the extent permitted by law,’ a particular agency may try to give effect to the Executive Order when to do so is inconsistent with the relevant funding statute.” Allbaugh, 295 F.3d at 33. Allbaugh is distinguishable. Because the Executive Order

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unambiguously commands action, here there is more than a “mere possibility that some agency might make a legally suspect decision.” Id. The Executive Order’s savings clause does not and cannot override its meaning.

Further, the Administration’s interpretation would simply lead us into an intellectual cul-de-sac. If “consistent with law” precludes a court from examining whether the Executive Order is consistent with law, judicial review is a meaningless exercise, precluding resolution of the critical legal issues.

The district court correctly rejected this argument.

V

The Administration also claims that an interpretation of the Executive Order by the Attorney General following the district court’s entry of a preliminary injunction saves the Executive Order from constitutional infirmity.

A

The district court enjoined “[t]he defendants (other than the President) . . . from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” The injunction did not extend to “the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor [did] it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction a ‘sanctuary jurisdiction.’” The injunction did not enjoin any action by the President himself but only by the Administration officials charged with following his commands.

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About one month after the issuance of the preliminary injunction, the Attorney General issued a Memorandum (“DOJ Memorandum”) interpreting the Executive Order. Memorandum, Implementation of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” (May 22, 2017). The DOJ Memorandum is directed internally, to “all department grant-making components.” Id. Although it does not mention the preliminary injunction, the DOJ Memorandum essentially counters the district court’s interpretation of the Executive Order and its analysis of the constitutional problems arising from that interpretation.

The DOJ Memorandum states that § 9(a) “is directed to the Attorney General and the Secretary of Homeland Security” and “will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.” Id. The DOJ Memorandum provides that, because § 9(a) includes a savings clause, the Executive Order “does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.” Id. Rather, the DOJ Memorandum claims, the Administration will merely continue to require certification of compliance with 8 U.S.C. § 1373 as a condition for receiving “any existing grant . . . that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition.” Id. Moreover, the term “sanctuary jurisdiction,” according to the DOJ Memorandum, “for purposes of enforcing the Executive Order, . . . will refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” Id. Essentially, the Administration argues that the DOJ Memorandum renders the Executive Order a toothless threat.

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The same day that the DOJ Memorandum was issued, the federal government filed a motion for reconsideration, relying almost entirely on the DOJ Memorandum. The district court concluded that the DOJ Memorandum did not change the controlling law, or the material facts, because the DOJ Memorandum was “functionally an ‘illusory promise’ to enforce the Executive Order narrowly and, as such, does not resolve the constitutional claims that the Counties have brought based on the [Executive] Order’s language.”

Consistent with the district court’s rejection of this argument, after the preliminary injunction was issued, other statements made by and on behalf of the Administration, including statements made by the Attorney General, contradict the DOJ Memorandum. Indeed, the Attorney General himself—both before and after the district court’s order—has continuously represented that localities “violate federal law” by refusing to honor detainer requests.7 Press

7 Identified in § 9(b) of the Order, detainer requests are communications from ICE to local law enforcement seeking the continued detention of state detainees after their scheduled release. 8 C.F.R. § 287.7. ICE does not reimburse local jurisdictions for the costs of continued detention, and compliance with a request is voluntary. See Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed requests” to avoid conflict with the Tenth Amendment.).
In addition to implicating federalism concerns, detainers create potential Fourth Amendment problems. See, e.g., Arizona v. United States, 567 U.S. 387, 413 (2012) (“Detaining individuals solely to verify their immigration status would raise constitutional concerns.”); Morales v. Chadbourne, 793 F.3d 208, 215–17 (1st Cir. 2015) (affirming denial of qualified immunity to ICE agent and his supervisors when agent issued detainer without probable cause); Miranda-Olivares v. Clackamas Cty., 2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014) (granting summary

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Briefing, White House Press Secretary Spicer with Attorney General Sessions (March 27, 2017).

Similarly, in sworn testimony before Congress specifically addressing the reach of the Executive Order, the acting director of ICE equated violation of § 1373 with policies “where [localities] don’t honor detainers or allow us access to the jails.” Hearing on the ICE & CBP F.Y. 2018 Budget Before the Subcommittee on Homeland Security of the H. Comm on Appropriations, 115th Cong., 2017 WLNR 18737622 (June 13, 2017). And the same day that the district court issued its preliminary injunction, the White House issued an official statement that “[s]anctuary cities, like San Francisco, block their jails from turning over criminal aliens” and “are engaged in the dangerous and unlawful nullification of Federal law.” Statement, White House, Statement on Sanctuary Cities Ruling (Apr. 25, 2017).

B

The Administration asks us to look beyond the Executive Order’s text and the Administration’s rhetoric to give controlling construction to the DOJ Memorandum. In light of the Executive Order’s plain meaning and the Administration’s contrary interpretations of the Executive Order, we cannot defer to the DOJ Memorandum.

judgment to detainee against county regarding its “custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention”).

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1

As a general rule, we give significant weight to an agency interpretation of an executive order. Because an agency has “presumed expertise in interpreting executive orders charged to its administration,” the Court generally will “review such agency interpretations with great deference.” Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981). “To be sustained, the agency’s interpretation need not be the only reasonable interpretation. All that is required is that the interpretation adopted by the agency be reasonable. The agency interpretation is considered reasonable unless it is plainly erroneous or inconsistent with the order.” Id. at 15–16 (citations and quotation marks omitted).

2

Here, the general rule does not apply, and we must respectfully decline to give deference to the DOJ Memorandum.

First, the DOJ Memorandum is not consistent with the terms of the Executive Order because the Executive Order plainly commands the Attorney General and the Secretary to withdraw essentially all federal grants. The DOJ Memorandum is not a reasonable interpretation of the Executive Order because it is “inconsistent with the order” itself. Id. at 15–16. As discussed above, the Executive Order plainly threatens all federal grant money except that “deemed necessary for law enforcement purposes.” EO § 9(a). The DOJ Memorandum, if binding, is therefore an abdication of the Attorney General’s duties under the Executive Order. And the Administration’s claim that the Executive Order has

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meant nothing all along is belied by the Executive Order itself and the Administration’s public statements.

Second, where, as here, an agency’s interpretation involves an issue of “deep ‘economic and political significance,’” it may not be entitled to deference. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)). This is particularly true where the agency lacks expertise and has not been expressly delegated the authority to interpret the law. Id. Aside from its boilerplate savings clause, the Executive Order made no mention of the significant legal issues raised within the Executive Order, and so it cannot be that analysis of those issues was expressly delegated to the Attorney General.

Third, the DOJ Memorandum has no force outside of the Department of Justice. The DOJ Memorandum is addressed to “All Department Grant-Making Components,” with “Department” referring singularly to the Department of Justice. It does not bind other agencies.

Finally, the memo is a “post hoc justification adopted in response to litigation.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 614 (2013). The timing of the DOJ Memorandum cannot be ignored. It took months for the Administration to interpret the Executive Order narrowly, and it took a preliminary injunction for the Attorney General to issue the DOJ Memorandum.

3

If we look beyond the text of the Executive Order, the Administration’s position becomes considerably weaker. The

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parties have not directed us to any public statement made by or on behalf of the Administration that is consistent with the DOJ Memorandum—even after the district court entered summary judgment and a permanent injunction in favor of the Counties.

Given our command to interpret the Executive Order “consistently with its ‘object and policy,’” Bassidji, 413 F.3d at 934, we consider the public statements made by the Administration, up to and including the President. For one thing, a president’s statements guide those tasked with enforcing the Executive Order. See Cole v. Young, 351 U.S. 536, 556 (1956) (“[An executive order’s] failure to state explicitly what determinations are required leaves no choice to the agency heads but to follow the most reasonable inferences to be drawn.”). And for another, the Administration’s public statements are indicative of both the object of and policy supporting the Executive Order. Bassidji, 413 F.3d at 934; see also, e.g., Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 274–75 (1975) (considering a presidential announcement accompanying the signing of an executive order); Bassidji, 413 F.3d at 935 (considering letter to congressional leaders discussing an executive order); Islamic Rep. of Iran v. Boeing Co., 771 F.2d 1279, 1284 (9th Cir. 1985) (considering President Reagan’s explanation of an executive order to Congress).

While the Administration’s statements cannot alter the plain meaning of the Executive Order, Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329–30 (1994), here the statements confirm what we have learned from the text of the Executive Order—that the Administration intends to cripple jurisdictions that do not assist in enforcing federal

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immigration policy. The President himself stated that he would use defunding as a “weapon”—and particularly against California. Bill O’Reilly Interview with President Donald J. Trump. Press Secretary Spicer, announcing the Executive Order, said that President Trump would “make sure that . . . counties and other institutions that remain sanctuary cities don’t get federal government funding in compliance with the executive order.” Press Briefing, White House Press Secretary Sean Spicer (Feb. 8, 2017).

4

For these reasons, the district court properly denied the motion for reconsideration based on the DOJ Memorandum.

VI

We turn now to the relief granted by the district court—a permanent nationwide injunction barring Administration officials “from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” The district court granted the Counties’ motions for summary judgment as to the constitutionality of § 9(a) of the Executive Order, permanently enjoining its enforcement. The court’s analysis largely followed its reasoning in the preliminary injunction order. The scope of the injunction is the same, applying not to the President but to Administration officials tasked with carrying it out. We agree that the Counties are entitled to injunctive relief, but we remand for reexamination of the nationwide scope of the injunction.

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A

The Counties are entitled to injunctive relief. An injunction is appropriate when the party seeking relief demonstrates that: (1) it is likely to suffer irreparable injury that cannot be redressed by an award of damages; (2) that “considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted”; and (3) “that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

The Administration’s argument as to the first and third factors is indistinguishable from its position on the Executive Order’s interpretation. Because the Executive Order contemplates no illegal conduct, the argument goes, the Counties cannot be injured and the public interest is at least indifferent to the injunction. We disagree with the Administration’s interpretation of the Executive Order, and we therefore disagree with its argument regarding the propriety of the injunction. A total loss of federal funding would be catastrophic, and the Counties’ (and their residents’) need for certainty renders damages inadequate. Id. And the public interest cannot be disserved by an injunction that brings clarity to all parties and to citizens dependent on public services. Id.

Additionally, the balance of hardships tips in favor of enjoining enforcement of § 9(a) against the Counties. Indeed, the Administration has not even attempted to argue that the injunction causes it any burden at all. See Melendres, 695 F.3d at 1002 (“The Defendants cannot be harmed by an order enjoining an action they will not take.”).

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B

While we agree that the district court was correct to enjoin the Administration from enforcing § 9(a) against the Counties, the present record is not sufficient to support a nationwide injunction. We therefore vacate the injunction and remand for careful consideration by the district court.

“Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Hills v. Gautreax, 425 U.S. 284, 293–94 (1976) (citations and internal quotation marks omitted). This is so, in part, because broad injunctions may stymie novel legal challenges and robust debate. See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized that when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court.”).

In recent cases, we have upheld nationwide injunctions when “necessary to give Plaintiffs a full expression of their rights.” Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017) (per curium), rev’d on other grounds Trump v. Hawaii, 585 U.S. ___, 2018 WL 3116337 (2018); see also Washington v. Trump, 847 F.3d 1151, 1166–67 (9th Cir. 2017) (per curium). These exceptional cases are consistent with our general rule that “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown”—“an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit . . . if such breadth is necessary to give prevailing parties the relief to which they

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are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987).

Here, the Counties’ tendered evidence is limited to the effect of the Order on their governments and the State of California. The record supports their claim that their budgets depend on grants awarded to themselves and to the State of California. Further, the evidence supports the conclusion that the Counties and the State of California were particular targets of the Executive Order. However, the record is not sufficiently developed on the nationwide impact of the Executive Order. Cf. City of Chicago v. Sessions, 888 F.3d 272, 292–93 (7th Cir. 2018) (affirming a nationwide injunction in part because the statute “interconnects” all recipients of Byrne JAG grants).

We are unpersuaded by the Administration’s arguments in favor of a blanket restriction on all nationwide injunctions. And we do not wish to interfere with the district court’s considerable discretion in ordering an appropriate equitable remedy. “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Intern. Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). However, because the record is insufficiently developed as to the question of the national scope of the injunction, we vacate the injunction to the extent that it applies outside California and remand to the district court for a more searching inquiry into whether this case justifies the breadth of the injunction imposed.

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VII

The district court granted summary judgment to the Counties, determining that § 9(a) of Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” is unconstitutional and enjoining enforcement of that section. If it were to enforce the Executive Order, the Executive would assert a power that belongs solely to Congress by withdrawing funds in the absence of congressional authorization. We therefore affirm the grant of summary judgment. Although we agree that the Counties are entitled to an injunction as to the Executive Order’s effect in California, the record as presently developed does not justify a nationwide injunction. Thus, we vacate the nationwide injunction and remand for further consideration by the district court in the first instance. We need not—and do not—reach any other issues urged by the parties.

AFFIRMED in part; VACATED in part; and REMANDED.8

Each party to bear its own costs.

8 All pending motions are denied as moot.

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FERNANDEZ, Circuit Judge, dissenting:

Congress has the authority to enact legislation regarding immigration and nationality.1 That entails legislation that determines which foreign citizens are permitted to cross the borders of the United States and live within this country. Congress has done so,2 and those determinations have duly become the laws of the United States.3 Also, the president “shall take Care that the Laws be faithfully executed.”4 It came to the attention of President Trump that some individuals in the country did not agree with the laws duly passed in the area of immigration and nationality. Those individuals were of the opinion that they and others who agreed with their position should delay or thwart the execution of those laws. To that end they had prevailed upon local and state governmental entities in the places they resided to pass laws that were designed to at least reduce the cooperation of state or local government officials and entities with federal immigration officials and entities. For example, the City and County of San Francisco and the County of Santa Clara (hereafter “the Counties”) have enacted ordinances or policies that at least etiolated the Counties’ government officials’ cooperation with or giving of information to federal immigration authorities when those county officials were acting in an official capacity. See S.F., Cal., Admin. Code §§ 12H.1–.6, 12I.1–.7; County of Santa

1 See U.S. Const. art. I, § 8, cl. 4; Toll v. Moreno, 458 U.S. 1, 10, 102 S. Ct. 2977, 2982, 73 L. Ed. 2d 563 (1982).
2 See, e.g., United States Code, Title 8. 3 See U.S. Const. art. I, § 7, cl. 2. 4 U.S. Const. art. II, § 3.

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Clara, Cal., Board of Supervisors Policy 3.54, Civil Immigration Detainer Requests (Oct. 18, 2011); County of Santa Clara, Cal., Board of Supervisors Resolution 2010-316, Advancing Public Safety and Affirming the Separation Between County Services and the Enforcement of Federal Civil Immigration Law (June 22, 2010). For its part, based on the animus that animated those ordinances, the State of California imposed similar restrictions upon all law enforcement officials. See Cal. Gov’t Code §§ 7282–7282.5; id. §§ 7284–7284.12; see also id. §§ 7285.1–7285.3 (prohibiting employers’ voluntary cooperation with federal immigration agents’ access or entry); id. § 7310 (directing housing prohibitions regarding non-citizens in immigration custody); id. § 12532 (conducting detention facility inspections); Cal. Lab. Code § 1019.2 (prohibiting reverification of employment eligibility by an employer).

In partial response to that kind of legislation and action, the President issued an executive order,5 which directs certain
high officers of the United States government as follows:

Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that

5 Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (hereafter the “Executive Order”).

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jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

Executive Order § 9(a). Of course, the Executive Order does make 8 U.S.C. § 1373 the foundation of section 9(a)’s directives. Section 1373 reads as follows in pertinent part:

(a) . . . Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) . . . Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect

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to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

I note that on its face the section does not dragoon state or local officials into federal government service,6 but, rather, merely precludes governmental entities or officials from prohibiting or restricting other governmental entities or officials from communicating with the Immigration and Naturalization Service.7 It does not require any entity or person to communicate any information to the Service, or to do anything with information received from the Service. Besides the section’s rather mild requirement, lest there be any doubt, the Attorney General has essentially declared that he will, indeed, adhere to the Executive Order’s requirement

6 See Printz v. United States, 521 U.S. 898, 928, 117 S. Ct. 2365, 2381, 138 L. Ed. 2d 914 (1997).
7 City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999); see also Murphy v. Nat’l Collegiate Athletic Ass’n, ___ U.S. ___, ___, 138 S. Ct. 1461, 1477, ___ L. Ed. 2d ___ (2018) (discussing principles behind the anticommandeering rule, none of which supports attempts to frustrate the carrying out of national programs and policies (like immigration) by prohibiting communications between national and state or local officials).

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that any steps he takes must be consistent with law. See Memorandum for All Department Grant-Making Components from the Attorney General relating to Implementation of the Executive Order (May 22, 2017) (hereafter, “the Formal Memorandum”).

Nevertheless, the Counties have facially challenged the Executive Order and asked the United States courts to enjoin United States officials from following the Executive Order, which, in effect, directed that those officials shall assure that a law of the United States shall “be faithfully executed.”8 Is that a proper use of the power of the United States courts in this case? One would think that to ask the question is to answer it in the negative. Alas, the district court did not agree with that answer. Alack, neither do my esteemed colleagues. I do. The reasons for my doing so follow.

(1) I do not think that this case is ripe for decision. I recognize that the concept of ripeness is very close to the concept of standing, and often is much the same as injury-infact inquiries in the standing area. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138–39 (9th Cir. 2000) (en banc). As we have noted, “ripeness can be characterized as standing on a timeline.” Id. at 1138. In either event, what a party must show is that there is a true “‘case or controversy,’” that is, “that the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Id. at 1139; see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). Moreover, ripeness doctrine does focus on timing and directs us to consider whether the claim a plaintiff is making keys on an alleged injury that is speculative because it “‘rests upon

8 U.S. Const. art. II, § 3.

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contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010); see also Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 1724–25, 109 L. Ed. 2d 135 (1990) (“Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.” (internal quotation marks omitted)). Moreover, while there are times when a “law is aimed directly at plaintiffs”9 and there is reason to believe that it will be enforced against them,10 that is not the case here. The Executive Order itself is not directed toward the Counties at all; it is directed to Federal government officials only. If they obey its dictates, they will not overstep legal or constitutional boundaries. Nor have they threatened that they will knowingly do so.

The parties do not dispute that in order to assess whether action will be taken against the Counties a three-part test should be applied to ripeness in this case. That is: “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged [law].” Thomas, 220 F.3d at 1139. Application of the test demonstrates that this case is not ripe.

First: As already noted, the Executive Order is not directed at the Counties. It is directed to the Attorney

9 Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392, 108 S. Ct. 636, 642, 98 L. Ed. 2d 782 (1988).
10 Id. at 393, 108 S. Ct. at 643.

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General and the Secretary. Moreover, while it does direct those officials to “ensure” that a law—§ 1373—is complied with, it also tells them that whatever they do in that regard must be “consistent with law.” And neither the Attorney General nor the Secretary has threatened to take actions that do not adhere to that admonition. That is quite different from executive orders that direct the executive’s subordinates to take certain actions, but do not caution that those actions must be taken within the confines of existing law. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583, 587, 72 S. Ct. 863, 865, 867, 96 L. Ed. 1153 (1952); Washington v. Trump, 847 F.3d 1151, 1156–57 (9th Cir.) (per curiam), cert. denied, __ U.S. __, 138 S. Ct. 448, 199 L. Ed. 2d 331 (2017). The district court suggested that the admonition would render the Executive Order legally meaningless, but that is a disingenuous reading of it. It is not meaningless to announce to executive officers and, indeed, the nation, that a statute—here § 1373—will be enforced even if enforcement has been somewhat lax in the past. And the Counties certainly do not assert that they have violated or intend to violate § 1373.

In short, the Counties have not met the concrete-plan element.

Second: The terms of the Executive Order itself and the Formal Memorandum show that there is no threat to enforce the Executive Order in a manner that takes away (or denies) funding to the Counties in the improper manner that the Counties seem to fear. That is, neither the Executive Order itself, nor any actions taken under it, by creation of regulations or otherwise, have subtended that threat. Rather, whatever the President, or others, might wish for in order to achieve what they deem to be a more perfect polity, the

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Executive Order recognizes their limits in achieving that. Nothing they have said or done threatens the possible illegal horrors conjured up by the Counties. See Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 774 (9th Cir. 2006). And, after all, it is the Executive Order itself that is under attack here. It does not direct that any illegal conduct be undertaken. This factor does not support ripeness.

Third: There is no enforcement history regarding the Executive Order. San Francisco suggests that the factor is, therefore, neutral. Quite the contrary. What it does demonstrate is that the Counties’ rush to litigate caused them to bring this facial attack on the Executive Order before the timeline allowed their case to reach the ripeness stage.

Therefore, in my view this matter is not ripe and the district court should have eschewed jurisdiction, as should we.

(2) While I am of the opinion that we should not opine on the merits at this point, because the majority does, I must say a few words. To a large extent, the defect in the district court’s issuance of an injunction was caused by its failure to accord the Executive Order a fair enough reading. That resulted in its abusing its discretion when it issued the injunction. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001); see also United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).

There can be no doubt that the President had the authority and the duty to see that duly adopted laws were faithfully executed, and to direct his subordinates to that end. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492–93, 130 S. Ct. 3138, 3151–52, 177 L. Ed. 2d 706

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(2010); Nixon v. Fitzgerald, 457 U.S. 731, 749–50, 102 S. Ct. 2690, 2701, 73 L. Ed. 2d 349 (1982); Myers v. United States, 272 U.S. 52, 117, 133–35, 47 S. Ct. 21, 25, 31, 71 L. Ed. 160 (1926). One way a president does that is through executive orders. See Bldg. & Constr. Trades Dep’t v. Allbaugh, 295 F.3d 28, 32–33 (D.C. Cir. 2002). That is what the President did here. The courts do not treat executive orders with disdain, but read and construe them in much the same way as statutes should be treated,11 and the courts do not properly construe executive orders based upon the courts’ own policy preferences.12 Among other things, that means that: “‘when the [order’s] language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’” Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S. Ct. 1023, 1030, 157 L. Ed. 2d 1024 (2004). And it is not the role of the courts “to rewrite the Executive Order.” Washington, 847 F.3d at 1167. Unfortunately, the district court did not follow those rules.

What the Counties argued for and what the district court did was to shunt aside short but clear and extraordinarily important wording in the Executive Order. The introductory sentence of section 9 of the Executive Order merely stated that it was executive branch policy that § 1373 be followed “to the fullest extent of the law,” and lest that be seen as too expansive, the body of section 9(a) directed that any actions

11 See Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1284–85 (9th Cir. 1987); see also Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005).
12 See Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 1174 (9th Cir. 2017), cert. granted, __ U.S. __, 138 S. Ct. 1165, 200 L. Ed. 2d 313 (2018).

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taken by the Attorney General or the Secretary were to be taken “to the extent consistent with law” and not otherwise. To brush those words aside as implausible, or boilerplate, or even as words that would render the Executive Order meaningless was just to say that the plain language of the Executive Order should be ignored in favor of comments made dehors the order itself, none of which have resulted in the taking of any illegal action pursuant to the order.13 That is not the proper way to deal with plain language—it is, instead, an attempt to rewrite the Executive Order itself and then to enjoin use of the newly written version.14 And if there is ambiguity in certain parts of the Executive Order, it is not at all ambiguous in its use of the restrictive language. Nor is it proper to enjoin enforcement of the Executive Order on the unsupported speculation that it will be implemented in an unconstitutional manner. See Arizona v. United States, 567 U.S. 387, 415, 132 S. Ct. 2492, 2510, 183 L. Ed. 2d 351 (2012); Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454, 128 S. Ct. 1184, 1193, 170 L. Ed. 2d 151

13 As to the dismissive attitude evidenced by those characterizations, the answer is well set forth in Allbaugh, 295 F.3d at 33, where the court, referring to Youngstown, 343 U.S. 579, 72 S. Ct. 863, said: “Indeed, had President Truman merely instructed the Secretary of Commerce to secure the Government’s access to steel ‘[t]o the extent permitted by law,’ Youngstown would have been a rather mundane dispute over whether the Secretary had statutory authority to act as he did.”
14 See Trump v. Hawaii, ___ U.S. ___, ___, 138 S. Ct. 2392, 2416–23, ___ L. Ed. 2d ___ (2018) (rejecting attack on an executive order based on statements made by the President in his election campaign and some of his other general statements).

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(2008). Certainly, it was not a proper basis for deciding that the Executive Order was facially unconstitutional.15

In fine, while the Counties may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself.16

Thus, I respectfully dissent.

15 If an executive agency should misstep at some point, that will be the time to so state and rule accordingly. See Allbaugh, 295 F.3d at 33. I note that City of Chicago v. Sessions, 888 F.3d 272, 278 (7th Cir. 2018), reh’g en banc granted on other grounds, No. 17-2991 (7th Cir. June 4, 2018) is not apposite. It discusses conditions which were not imposed as a result of the Executive Order and does not consider issues regarding enforcement of § 1373 itself.
16 While it goes without saying that I would vacate the injunction in its entirety, even if it were otherwise proper, the district court erred when it granted a nationwide injunction. It could have granted relief to the Counties without so doing. In fact, the whole concept of issuing nationwide injunctions is somewhat dubious. See Trump, ___ U.S. at ___, 138 S. Ct. at 2425–29 (Thomas, J., concurring); cf. id. at ___, 138 S. Ct. at 2423 (majority opinion) (declining to decide “propriety of the nationwide scope of the injunction”). They should at the very least be used with a great deal of caution. In general, a court should not stretch to impose its will further than is necessary to grant relief to those before it. See L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011); see also Califano v. Yamasaki, 442 U.S. 682, 701–03, 99 S. Ct. 2545, 2558, 61 L. Ed. 2d 176 (1979).

 
 Case 3:17-cv-00485-WHO Document 235 Filed 08/15/19 Page 1 of 6

1 JAMES R. WILLIAMS, County Counsel (S.B. #271253) GRETA S. HANSEN (S.B. #251471)
2 L. JAVIER SERRANO (S.B. #252266) OFFICE OF THE COUNTY COUNSEL
3 70 West Hedding Street, East Wing, Ninth Floor San José, California 95110-1770
4 Telephone: (408) 299-5900 Facsimile: (408) 292-7240
5
Attorneys for Plaintiff 6 COUNTY OF SANTA CLARA
UNITED STATES DISTRICT COURT
7
NORTHERN DISTRICT OF CALIFORNIA
8
SAN FRANCISCO DIVISION
9

10 CITY AND COUNTY OF SAN

FRANCISCO,
11

Plaintiff,

12

v.

13 DONALD J. TRUMP, et al.,
Defendants.
14

15 COUNTY OF SANTA CLARA, Plaintiff,

16

v.

STIPULATION AND FINAL JUDGMENT AND ORDER
No. 3:17-cv-00485-WHO

17 DONALD J. TRUMP, et al.,

18

Defendants.

No. 3:17-cv-00574-WHO

19
WHEREAS, the underlying actions commenced as cases styled City and County of San
20
Francisco v. Trump (No. 3:17-cv-00485-WHO) and County of Santa Clara v. Trump (No. 3:17-cv-
21
00574-WHO), hereinafter collectively referred to as the “Litigation,” asserting claims challenging
22
the constitutionality of Section 9 of Executive Order Number 13768, entitled “Enhancing Public
23
Safety in the Interior of the United States” (“Section 9”);
24
WHEREAS, on November 20, 2017, the United States District Court for the Northern
25
District of California granted summary judgment in favor of Plaintiffs on these claims and entered a
26
permanent, nationwide injunction barring enforcement of Section 9;
27

28

Stipulation and Order

1
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00485-WHO Document 235 Filed 08/15/19 Page 2 of 6

1

WHEREAS, on August 1, 2018, in the Litigation upon appeal, the United States Court of

2 Appeals for the Ninth Circuit affirmed the District Court’s grant of summary judgement and

3 injunction as to the Executive Order’s effect in California but vacated the nationwide injunction for

4 further consideration by the District Court (see City and County of San Francisco v. Trump, 897

5 F.3d 1225 (9th Cir. 2018)); and

6

WHEREAS, the constitutionality of Section 9 is not currently being actively litigated

7 elsewhere in the nation and the Parties wish to avoid the need to expend further resources on

8 resolving these issues,

9

WHEREAS, assuming approval by the Court of the joint Stipulation and Final Judgment, the

10 pending Case Management Conference scheduled for August 20, 2019 may be cancelled as moot,

11

NOW THEREFORE, the parties hereby jointly stipulate to the following:

12

1. Final Judgment is hereby entered in favor of the Plaintiffs on the merits for the

13

reasons set forth in City and County of San Francisco v. Trump, 897 F.3d 1225 (9th

14

Cir. 2018);

15

2. All Parties agree that the deadline for further review of the Ninth Circuit’s August 1,

16

2018 decision has passed. Out of an abundance caution, however, the Parties agree

17

that Defendants shall not seek to pursue any further review from (1) the Ninth

18

Circuit’s decision of August 1, 2018, or (2) the final judgments entered in these cases.

19

3. The enforcement of Section 9 within the State of California is hereby enjoined;

20

4. Plaintiffs withdraw, without prejudice, their request for injunctive relief that would

21

reach outside the State of California;

22

5. For the sake of clarity, nothing in this dismissal precludes Plaintiffs from seeking to

23

renew their request for injunctive relief outside of the State of California by

24

reopening this matter. In the event that Plaintiffs seek to re-open the above

25

referenced cases, Defendants agree that any statute of limitations, statute of repose, or

26

other time-related defense based on federal, state or any other law (including, but not

27

limited to, defenses based on the doctrines of waiver, laches, acquiescence, or

28

estoppel) that may be applicable to any of the claims asserted by Plaintiffs will be

Stipulation and Order

2
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00485-WHO Document 235 Filed 08/15/19 Page 3 of 6

1

deemed tolled. However, nothing in this dismissal precludes the United States from

2

defending the merits of such a request; and

3

6. Each party in these actions will bear its own costs and attorney’s fees.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Stipulation and Order

3
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00485-WHO Document 235 Filed 08/15/19 Page 4 of 6

1

Respectfully submitted,

2 DENNIS J. HERRERA (CA Bar #139669) JOSEPH H. HUNT

City Attorney 3 JESSE C. SMITH (CA Bar #122517)

Assistant Attorney General DAVID L. ANDERSON

Chief Assistant City Attorney 4 RONALD P. FLYNN (CA Bar #184186)

United States Attorney JOHN R. TYLER

Chief Deputy City Attorney 5 YVONNE R. MERÉ (CA Bar #173594)

Assistant Director

Chief of Complex and Affirmative Litigation
6

7

/s/ Sara J. Eisenberg

/s/ Daniel D. Mauler DANIEL D. MAULER

SARA J. EISENBERG (CA Bar #269303) 8 TARA M. STEELEY (CA Bar #231775)

(Va. Bar #73190) Trial Attorney

AILEEN M. McGRATH, (CA Bar #280846)

9 Deputy City Attorneys

Department of Justice, Civil Division

10 City Hall, Room 234

P.O. Box 883 Washington, DC 20044

1 Dr. Carlton B. Goodlett Place 11 San Francisco, California 94102-4602

Telephone: (202) 616-0773 Facsimile: (202) 616-8470

Telephone: (415) 554-4748 12 Facsimile: (415) 554-4715

E-mail:

dan.mauler@usdoj.gov

E-Mail:
13

brittany.feitelberg@sfgov.org COUNSEL FOR DEFENDANTS

COUNSEL FOR PLAINTIFF 14 CITY AND COUNTY OF SAN
FRANCISCO
15
* * *
16
OFFICE OF THE COUNTY COUNSEL, 17 COUNTY OF SANTA CLARA

DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; KEVIN K. McALEENAN, Acting Secretary of Homeland Security; WILLIAM P. BARR, Attorney General of the United States in City & County of San Francisco v. Trump, et al., No. 3:17-cv00485-WHO

18 JAMES R. WILLIAMS County Counsel
19
/s/ Javier Serrano 20 JAVIER SERRANO (CA Bar #252266)
Deputy County Counsel
21
70 West Hedding Street 22 East Wing, Ninth Floor
San Jose, CA 95110-1770 23 Telephone: (408) 299-5900
Facsimile: (408) 292-7240 24 E-mail: javier.serrano@cco.sccgov.org

DONALD J. TRUMP, President of the United States; KEVIN K. McALEENAN, Acting Secretary of Homeland Security; WILLIAM P. BARR, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO

25 COUNSEL FOR PLAINTIFF COUNTY OF SANTA CLARA
26

27

28

Stipulation and Order

4
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00485-WHO Document 235 Filed 08/15/19 Page 5 of 6

1

ORDER

2

It appearing to the Court that the parties jointly request the following relief, it is hereby

3 ORDRED as follows:

4

1. Final Judgment is hereby entered in favor of the Plaintiffs on the merits for the

5

reasons set forth in City and County of San Francisco v. Trump, 897 F.3d 1225 (9th

6

Cir. 2018);

7

2. All Parties agree that the deadline for further review of the Ninth Circuit’s August 1,

8

2018 decision has passed. Out of an abundance caution, however, the Parties agree

9

that Defendants shall not seek to pursue any further review from (1) the Ninth

10

Circuit’s decision of August 1, 2018, or (2) the final judgments entered in these cases.

11

3. The enforcement of Section 9 within the State of California is hereby ENJOINED;

12

4. Plaintiffs’ request for injunctive relief that would reach outside the State of California

13

is DISMISSED WITHOUT PREJUDICE;

14

5. For the sake of clarity, this dismissal does not Plaintiffs’ rights to seek to renew their

15

request for injunctive relief outside of the State of California by reopening this matter.

16

In the event that Plaintiffs seek to re-open the above referenced cases, Defendants

17

agree that any statute of limitations, statute of repose, or other time-related defense

18

based on federal, state or any other law (including, but not limited to, defenses based

19

on the doctrines of waiver, laches, acquiescence, or estoppel) that may be applicable

20

to any of the claims asserted by Plaintiffs will be deemed tolled. However, nothing in

21

this dismissal precludes the United States from defending the merits of such a

22

request; and

23

6. Each party in these actions shall bear its own costs and attorney’s fees.

24

IT IS SO ORDERED.

25

26 DATED: August 15, 2019
27 28

_____________________________ Hon. William H. Orrick United States District Judge

Stipulation and Order

5
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00485-WHO Document 235 Filed 08/15/19 Page 6 of 6

1

ATTESTATION OF SIGNATURES

2

I, Javier Serrano, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern District

3 of California, that concurrence in the filing of this document has been obtained from each signatory

4 hereto.

5

6

/s/ Javier Serrano

JAVIER SERRANO (CA Bar #252266)

7

COUNSEL FOR PLAINTIFF

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2064573

Stipulation and Order

6
17-CV-00485/17-CV-00574-WHO

 
 Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 1 of 41
ADRMOP,CLOSED,ProSe,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−00485−WHO

City and County of San Francisco v. Donald J. Trump et al Assigned to: Judge William H. Orrick Relate Case Cases: 3:17−cv−00574−WHO
3:17−cv−01535−WHO 3:17−cv−04642−WHO 3:17−cv−04701−WHO 3:18−cv−05146−WHO 3:18−cv−05169−WHO 3:19−cv−06189−WHO Case in other court: 17−16886 Cause: 28:2201 Declaratory Judgement Plaintiff

Date Filed: 01/31/2017 Date Terminated: 12/08/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

City and County of San Francisco

represented by Jennifer Lee Taylor Morrison & Foerster LLP 425 Market St. San Francisco, CA 94105−2482 (415) 268−7000 Email: JLeeTaylor@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mollie M Lee Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−510−4439 Email: mollie.lee@doj.ca.gov TERMINATED: 08/27/2018 LEAD ATTORNEY

Aileen Marie McGrath San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415−554−4691 Email: Aileen.McGrath@sfcityatty.org ATTORNEY TO BE NOTICED

Christine Van Aken Office of the City Attorney 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 415−554−4633 Fax: 415−554−4699 Email: christine.van.aken@sfcityatty.org TERMINATED: 08/13/2018

Lee Isaac Sherman California Department of Justice 300 S. Spring Street Los Angeles, CA 90013 (213) 269−6404 Email: lee.sherman@doj.ca.gov

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 2 of 41
ATTORNEY TO BE NOTICED
Matthew Stephen Lee City and County of San Francisco Office of the City Attorney City Hall 1 Dr Carlton B Goodlett Pl Ste 234 San Francisco, CA 94102−4604 415−554−4677 Email: matthew.s.lee@sfgov.org TERMINATED: 05/13/2019
Neha Gupta San Francisco City Attorney's Office 1 Dr. Carlton B. Goodlett Pl. Suite 234 San Francisco, CA 94102 415−554−4665 Email: neha.gupta@sfgov.org ATTORNEY TO BE NOTICED
Ronald P. Flynn San Francisco City Attorney's Office Chief Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102−5408 (415) 554−4708 Fax: (415) 255−0733 Email: ronald.flynn@sfcityatty.org ATTORNEY TO BE NOTICED
Sara Jennifer Eisenberg San Francisco City Attorney's Office Chief of Strategic Advocacy City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 (415) 554−4633 Fax: (415) 554−4715 Email: sara.eisenberg@sfcityatty.org ATTORNEY TO BE NOTICED
Tara M. Steeley San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415−554−4655 Fax: 415−554−4699 Email: tara.steeley@sfcityatty.org ATTORNEY TO BE NOTICED
Yvonne Rosil Mere Ofc City Attorney 1390 Market St, 7FL San Francisco, CA 94102 415−554−3874 Email: yvonne.mere@sfcityatty.org ATTORNEY TO BE NOTICED
V.

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 3 of 41

Defendant Donald J. Trump President of the United States TERMINATED: 11/30/2017
Defendant John F Kelly Secretary of the United States Department of Homeland Security
Defendant Dana J. Boente TERMINATED: 02/27/2017
Defendant United States of America
Defendant Jefferson B. Sessions Attorney General of the United States TERMINATED: 11/30/2017 Defendant Elaine C. Duke TERMINATED: 11/30/2017

represented by Daniel D. Mauler U.S. Department of Justice Civil Division − Federal Programs Branch 20 Massachusetts Ave, NW Room 6141 Washington, DC 20530 202−616−0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson U.S. Department of Justice, Civil Division 318 South Sixth Street, Room 244 Springfield, IL 62701 202−514−3495 Email: scott.simpson@usdoj.gov TERMINATED: 04/25/2019 LEAD ATTORNEY
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 4 of 41

Defendant Kirstjen Nielsen
Defendant William P. Barr
Defendant Kevin K. McAleenan

represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/25/2019 LEAD ATTORNEY
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/25/2019 LEAD ATTORNEY

V. Movant County of Santa Clara
Amicus Service Employees International Union

represented by Cody Shawn Harris Keker and Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: charris@keker.com ATTORNEY TO BE NOTICED
represented by Claire P. Prestel SEIU 1800 Massachusetts Ave. NW Ste 600 Washington, DC 20036 230−730−7468 Email: claire.prestel@seiu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Smith Service Employees International Union 1800 Massachusetts Avenue NW Washington, DC 20036 202 730−7468 Fax: 202 429−5565 ATTORNEY TO BE NOTICED
Leo Gertner Service Employees International Union

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 5 of 41

Amicus Unite Here Local 19
Amicus Working Partnerships USA
Amicus Professors of Constitutional Law, Administrative L Immigration Law

1800 Massachusetts Avenue NW Washington, DC 20036 202 730−7468 Fax: 202 429−5565 ATTORNEY TO BE NOTICED
Nicole Gina Berner Service Employees International Union 1800 Massachusetts Avenue NW Washington, DC 20036 202 730−7468 Fax: 202 429−5565 ATTORNEY TO BE NOTICED
represented by Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED
Deborah Smith (See above for address) ATTORNEY TO BE NOTICED
Leo Gertner (See above for address) ATTORNEY TO BE NOTICED
Nicole Gina Berner (See above for address) ATTORNEY TO BE NOTICED
represented by Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED
Deborah Smith (See above for address) ATTORNEY TO BE NOTICED
Leo Gertner (See above for address) ATTORNEY TO BE NOTICED
Nicole Gina Berner (See above for address) ATTORNEY TO BE NOTICED
represented by Nevin Merrill Gewertz Bartlit Beck LLP Courthouse Place 54 West Hubbard Street Stuite 300 Chicago, IL 60654 312−494−4400 Fax: 312−494−4440 Email: nevin.gewertz@bartlit−beck.com ATTORNEY TO BE NOTICED
Sonya Diane Winner Covington & Burling LLP One Front Street, Suite 3500

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 6 of 41

Amicus Southern Poverty Law Center
Amicus Adelante Alabama Worker Center Amicus Alabama Coalition for Immigrant Justice Amicus American Federation of Teachers Amicus Americans for Immigrant Justice Amicus Asian American Legal Defense and Education Fund Amicus Asian Americans Advancing Justice − Asian Law Caucus Amicus Asian Americans Advancing Justice − Los Angeles

San Francisco, CA 94111 (415) 591−6000 Email: swinner@cov.com ATTORNEY TO BE NOTICED
represented by Nathan M McClellan University of Southern California Office of the General Counsel 3551 Trousdale Parkway, ADM 352 Los Angeles, CA 90089−5013 610−657−4330 Email: nathan.mcclellan@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher S. Burrichter Dechert LLP US Bank Tower 633 West 5th Street Los Angeles, CA 90071−2013 213 808−5700 Fax: 213 808−5760 Email: christopher.burrichter@dechert.com ATTORNEY TO BE NOTICED
Fred T. Magaziner Dechert LLP US Bank Tower 633 West 5th Street Los Angeles, CA 90071−2013 213 808−5700 Fax: 213 808−5760 Email: fred.magaziner@dechert.com ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 7 of 41
Amicus Asian Americans Advancing Justice − AAJC
Amicus Asian Americans Advancing Justice−Atlanta
Amicus Coalition for Humane Immigrant Rights
Amicus Equal Rights Advocates
Amicus Florida Immigrant Coaltion, Inc
Amicus Florida Legal Services, Inc
Amicus Greater Birmingham Ministries
Amicus Greater Rochester Coalition for Immigration Justice
Amicus Illinois Coalition for Immigrant and Refugee Rights
Amicus Immigrant Legal Resource Center
Amicus Jobs With Justice
Amicus Justice in Motion
Amicus Latin American Legal Defense and Education Fund
Amicus LatinoJustice PRLDEF
Amicus National Employment Law Project
Amicus National Immigration Law Center
Amicus

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 8 of 41

New Orleans Workers' Center for Racial Justice
Amicus Northwest Forest Worker Center
Amicus Refugee and Immigrant Center for Education and Legal Services
Amicus Safe Horizon
Amicus Southeast Immigrant Rights Network
Amicus St. Louis Workers Education Society
Amicus We Belong Together
Amicus Worker Justice Center of New York, Inc
Amicus Workers Defense Project
Amicus Worksafe
Amicus Ampush Media, Inc.

represented by Annasara Guzzo Purcell Fenwick and West LLP 555 California Street 12th floor Mountain View, CA 94041 United Sta 650−988−8500 Fax: 650−938−5200 Email: apurcell@fenwick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz Fenwick & West LLP 555 California Street, Suite 1200 San Francisco, CA 94104 415/875−2300 Fax: 415−281−1350 Email: kfritz@fenwick.com ATTORNEY TO BE NOTICED
Meghan Rhea WG+R Law Group PC 2233 Santa Clara Avenue Alameda, CA 94501 510 323−4034

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 9 of 41

Amicus Appboy Inc.
Amicus Azavea

Fax: 510 747−1724 Email: rhea@wgrpc.com ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman Fenwick & West LLP 801 California Street Mountain View, CA 94041 650 988−8500 Fax: 650 938−5200 Email: mzimmerman@fenwick.com ATTORNEY TO BE NOTICED
Patrick Eugene Premo Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 (650) 988−8500 Fax: (650) 938−5200 Email: ppremo@fenwick.com ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 10 of 41

Amicus Checkr, Inc.
Amicus Chegg Inc.
Amicus Eventbrite

(See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 11 of 41

Amicus General Assembly
Amicus IDEO
Amicus Knotel

ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 12 of 41

Amicus Managed by Q Inc.
Amicus Mapbox
Amicus Marin Software

Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 13 of 41

Amicus Minted LLC
Amicus SugarCRM Inc.
Amicus Work & Co

Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 14 of 41

Amicus County of Alameda
Amicus City of Berkeley
Amicus City of Davis
Amicus City of East Palo Alto
Amicus City of Fremont
Amicus County of Marin
Amicus County Of Monterey

(See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross Renne Public Law Group 350 Sansome Street Suite 300 San Francisco, CA 94104 (415) 848−7200 Fax: (415) 848−7230 Email: lross@publiclawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 15 of 41

Amicus City of Mountain View
Amicus City Of Oakland
Amicus City of Richmond
Amicus City of Salinas
Amicus City Of San Jose
Amicus City of Santa Cruz
Amicus City of Santa Rosa
Amicus Tahirih Justice Center, et al.

ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Fineman Cotchett, Pitre & McCarthy LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650−697−6000 Email: nfineman@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jamie S. Gorelick Wilmer Cutler Pickering Hale and Dorr LLP 1801 Pennsylvania Avenue NW Washington, DC 20006

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 16 of 41

Amicus International Municipal Lawyers Association
Amicus Public Schools, Public School Districts, and Associations of Educators Amicus Individual Sheriffs and Police Chiefs

202−663−6500 Email: Jamie.Gorelick@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brett Michael Schuman Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111 415−733−6000 Fax: 415−677−9041 Email: bschuman@goodwinlaw.com ATTORNEY TO BE NOTICED
Hayes Phillips Hyde Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111 415−733−6000 Fax: 415−677−9041 Email: hhyde@goodwinlaw.com ATTORNEY TO BE NOTICED
Indra Neel Chatterjee Goodwin Procter LLP 601 Marshall Street Redwood City, CA 94063 (650) 752−3100 Fax: (650) 853−1038 Email: NChatterjee@goodwinlaw.com ATTORNEY TO BE NOTICED
Nicholas A. Reider Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111 (415) 733−6000 Fax: (415) 677−9041 Email: nreider@goodwinlaw.com ATTORNEY TO BE NOTICED
represented by Darren S. Teshima Orrick, Herrington & Sutcliffe LLP 405 Howard Street San Francisco, CA 94105 415−773−4286 Fax: 415−773−5759 Email: dteshima@orrick.com ATTORNEY TO BE NOTICED
represented by Matthew J. Piers Hughes, Socol, Piers, Resnick & Dym, Ltd. Three First National Plaza 70 West Madison Street, Suite 4000 Chicago, IL 60602 (312) 580−0100 Fax: (312) 580−1994 Email: mpiers@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 17 of 41

Amicus City of Menlo Park
Amicus City of New Orleans Amicus Constitutional Law Scholars Amicus Tom Torlakson
Amicus State of California
Amicus Anti−Defamation League
Amicus API Council of San Francisco

represented by Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED
represented by Nevin Merrill Gewertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Howard Prouty California Department of Education 1430 N. Street, Suite 5319 Sacramento, CA 95814−5901 (916) 319−0860 Fax: (916) 319−0155 Email: tprouty@cde.ca.gov ATTORNEY TO BE NOTICED
represented by Lee Isaac Sherman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Catherine Ehrlich California Attorney General's Office 1515 Clay Street, 20th Floor Oakland, CA 94612 (510) 879−0173 Fax: (510) 622−2270 Email: lisa.ehrlich@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Ward Perrin Latham & Watkins LLP 355 South Grand Avenue, Suite 100 Los Angeles, CA 90071 213−485−1234 Fax: 213−891−8963 Email: robert.perrin@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 18 of 41

Amicus California Association of Nonprofits
Amicus Coalition of Agencies Serving the Elderly
Amicus Council of Community Housing Organizations
Amicus HIV/AIDS Provider Network
Amicus Homeless Emergency Service Providers Association
Amicus Long Term Care Coordinating Council
Amicus San Francisco Human Services Network
Amicus San Francisco Interfaith Council
Amicus San Francisco Latino Parity and Equity Coalition
Amicus San Francisco Mental Health Contractors Association

Maureen P. Alger Cooley LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306−2155 650−843−5000 Fax: 650−849−7400 Email: malger@cooley.com ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 19 of 41

Amicus Silicon Valley Council of Nonprofits
Amicus Supportive Housing Providers Network
Amicus San Jose/Silicon Valley NAACP
Amicus Franklin H. Wright as Betti Bellair and Yutz McDougal, aliases resident, under alias Arthur Thyme Amicus Lamar C. Chapman, III
Amicus States of West Virginia, Louisiana, et al. Office of the West Virginia Attorney General State Capitol Building 1, Rm. E−26 Charleston, WV 25305 (304) 558−2021
Amicus National Center for Lesbian Rights

represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Sheeva June Ghassemi−Vanni Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 650−988−8500 Email: sghassemi@fenwick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Franklin H. Wright 100 Polk Street San Francisco, CA 94109 PRO SE
represented by Lamar C. Chapman, III Reg. # 16900−42 Federal Correctional Institution P.O. Box 1000 Loretto, PA 15940 PRO SE
represented by Thomas Michael Johnson , Jr. Office of the Attorney General of West Virginia State Capitol Complex Bldg. 1, Room E−26 Charleston, WV 25305 United Sta (304) 558−2422 Email: tjohnson@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Whelan National Center for Lesbian Rights 870 Market Street Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: awhelan@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 20 of 41

Amicus Tennessee Immigrant and Refugee Rights Coalition Amicus 48 Cities and Counties
Amicus Political Science Scholars
Amicus Immigration Reform Law Institute
Amicus National Center for Lesbian Rights 870 Market Street Suite 370 San Francisco, CA 94102 Amicus Administrative Law Professors

represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Jeffrey Shih Susman Godfrey LLP 1201 Third Ave, Suite 3800 Seattle, WA 98101−3000 206−373−7390 Email: dshih@susmangodfrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Julie Beth Axelrod Center for Immigration Studies 1629 K Street Suite 600 Washington, DC, DC 20006 202−466−8185 Email: jba@cis.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann Margaret O'Leary San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Plac San Francisco, CA 94102 (415) 554−4661 Email: aoleary@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Miscellaneous City of Richmond

represented by Nancy L. Fineman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 21 of 41

01/31/2017
01/31/2017 01/31/2017

1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971−11115761.). Filed byCity and County of San Francisco. (Attachments: # 1 Civil Cover Sheet)(Lee, Mollie) (Filed on 1/31/2017) (Entered: 01/31/2017)
2 Proposed Summons. (Lee, Mollie) (Filed on 1/31/2017) (Entered: 01/31/2017)
3 Case assigned to Magistrate Judge Donna M. Ryu.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

01/31/2017 01/31/2017 02/02/2017 02/03/2017
02/06/2017 02/06/2017
02/07/2017 02/07/2017

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 2/14/2017. (sv, COURT STAFF) (Filed on 1/31/2017) (Entered: 01/31/2017)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 4/26/2017. Case Management Conference set for 5/3/2017 01:30 PM. (vlkS, COURT STAFF) (Filed on 1/31/2017) (Entered: 01/31/2017)
5 Summons Issued as to Dana J Boente, President Donald J. Trump, John F Kelly, United States of America, U.S. Attorney and U.S. Attorney General (vlkS, COURT STAFF) (Filed on 1/31/2017) (Entered: 01/31/2017)
6 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City and County of San Francisco.. (Lee, Mollie) (Filed on 2/2/2017) (Entered: 02/02/2017)
7 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (vlk, COURT STAFF) (Filed on 2/3/2017) (Entered: 02/03/2017)
8 NOTICE of Appearance by Ronald P. Flynn (Flynn, Ronald) (Filed on 2/6/2017) (Entered: 02/06/2017)
9 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. William H. Orrick for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Signed by the Executive Committee on February 6, 2017. (Attachments: # 1 Notice of Eligibility for Video Recording)(cjlS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
10 CASE MANAGEMENT CONFERENCE ORDER: Case Management Conference set for 5/2/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco. Case Management Statement due by 4/25/2017. Signed by Judge William H. Orrick on 2/7/2017. (jmdS, COURT STAFF) (Filed on 2/7/2017) (Entered: 02/07/2017)
11 MOTION to Relate Case PURSUANT TO N.D. CAL. CIVIL L.R. 3−12(B) filed by County of Santa Clara. (Attachments: # 1 Declaration of Cody S. Harris In Support Of Administrative Motion to Consider Whether Cases Should Be Related, # 2 Exhibit A

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 22 of 41

02/07/2017
02/07/2017 02/08/2017 02/08/2017 02/08/2017 02/09/2017 02/10/2017 02/10/2017 02/27/2017 03/08/2017
03/08/2017
03/08/2017
03/08/2017

to Declaration of Cody S. Harris, # 3 Exhibit B to Declaration of Cody S. Harris, # 4 Proposed Order, # 5 Certificate/Proof of Service)(Harris, Cody) (Filed on 2/7/2017) (Entered: 02/07/2017)
12 Statement of Non−Opposition STATEMENT OF SUPPORT REGARDING SANTA CLARA'S ADMINISTRATIVE 11 MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 2/7/2017) Modified on 2/8/2017 (aaaS, COURT STAFF). (Entered: 02/07/2017)
13 CERTIFICATE OF SERVICE by City and County of San Francisco re 12 Statement of Non−Opposition (Lee, Mollie) (Filed on 2/7/2017) (Entered: 02/07/2017)
14 CERTIFICATE OF SERVICE by City and County of San Francisco (Lee, Mollie) (Filed on 2/8/2017) (Entered: 02/08/2017)
15 NOTICE of Appearance by Yvonne Rosil Mere (Mere, Yvonne) (Filed on 2/8/2017) (Entered: 02/08/2017)
16 CERTIFICATE OF SERVICE by City and County of San Francisco (Lee, Mollie) (Filed on 2/8/2017) (Entered: 02/08/2017)
17 CERTIFICATE OF SERVICE by City and County of San Francisco Supplemental Proof of Service (Lee, Mollie) (Filed on 2/9/2017) (Entered: 02/09/2017)
18 Statement of Non−Opposition re 11 MOTION to Relate Case PURSUANT TO N.D. CAL. CIVIL L.R. 3−12(B) Statement of Support filed byDana J. Boente, President Donald J. Trump, John F Kelly, United States of America. (Related document(s) 11 ) (Simpson, W.) (Filed on 2/10/2017) (Entered: 02/10/2017)
19 Order by Hon. William H. Orrick granting 11 Motion to Relate Case No. 3:17cv574−LHK. (jmdS, COURT STAFF) (Filed on 2/10/2017) (Entered: 02/10/2017)
20 AMENDED COMPLAINT First Amended Complaint for Declaratory and Injunctive Relief against All Defendants. Filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 2/27/2017) (Entered: 02/27/2017)
21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof filed by City and County of San Francisco. Motion Hearing set for 4/12/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 3/22/2017. Replies due by 3/29/2017. (Attachments: # 1 Proposed Order)(Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
22 Declaration of Ben Rosenfield in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Ben Rosenfield in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
23 Declaration of Melissa Whitehouse in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Melissa Whitehouse in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
24 Declaration of Vicki Hennessy in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Vicki Hennessy in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 23 of 41

03/08/2017
03/08/2017
03/08/2017
03/08/2017
03/08/2017
03/20/2017 03/21/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017
03/22/2017

25 Declaration of Peter Walsh in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Commander Peter Walsh in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
26 Declaration of Tomas Aragon in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Tomas Aragon in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
27 Declaration of Colleen Chawla in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Colleen Chawla in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
28 Declaration of Sara Eisenberg in Support of 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Declaration of Sara Eisenberg in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
29 Request for Judicial Notice re 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Request for Judicial Notice in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/8/2017) (Entered: 03/08/2017)
30 Letter from Mollie M. Lee . (Lee, Mollie) (Filed on 3/20/2017) (Entered: 03/20/2017)
31 ORDER REGARDING AMICUS BRIEFING. Signed by Judge William H. Orrick on 03/21/2017. (jmdS, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/21/2017)
32 NOTICE of Appearance by Claire P. Prestel (Prestel, Claire) (Filed on 3/22/2017) (Entered: 03/22/2017)
33 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by Service Employees International Union, Unite Here Local 19, Working Partnerships USA. Responses due by 3/28/2017. (Attachments: # 1 Proposed Brief Amici Curiae, # 2 Proposed Order)(Prestel, Claire) (Filed on 3/22/2017) (Entered: 03/22/2017)
34 STIPULATION WITH PROPOSED ORDER filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 3/22/2017) (Entered: 03/22/2017)
35 OPPOSITION/RESPONSE (re 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof ) filed byJohn F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Attachments: # 1 Ltr. from Samuel R. Ramer, Acting Asst Atty Gen., Office of Legis. Affairs)(Simpson, W.) (Filed on 3/22/2017) (Entered: 03/22/2017)
36 ADMINISTRATIVE MOTION FOR LEAVE TO FILE AN AMICUS BRIEF filed by Professors of Constitutional Law, Administrative Law, and Immigration Law. Responses due by 3/28/2017. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Winner, Sonya) (Filed on 3/22/2017) (Entered: 03/22/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 24 of 41

03/22/2017 03/22/2017
03/22/2017 03/22/2017
03/22/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017

37 NOTICE of Appearance by Nathan M McClellan (McClellan, Nathan) (Filed on 3/22/2017) (Entered: 03/22/2017)
38 MOTION for Leave to File Amicus Curiae Brief filed by Southern Poverty Law Center, Adelante Alabama Worker Center, Alabama Coalition for Immigrant Justice, American Federation of Teachers, Americans for Immigrant Justice, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice − Asian Law Caucus, Asian Americans Advancing Justice − Los Angeles, Asian Americans Advancing Justice − AAJC, Asian Americans Advancing Justice−Atlanta, Coalition for Humane Immigrant Rights, Equal Rights Advocates, Florida Immigrant Coaltion, Inc, Florida Legal Services, Inc, Greater Birmingham Ministries, Greater Rochester Coalition for Immigration Justice, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, Jobs With Justice, Justice in Motion, Latin American Legal Defense and Education Fund, LatinoJustice PRLDEF, National Employment Law Project, National Immigration Law Center, New Orleans Workers' Center for Racial Justice, Northwest Forest Worker Center, Refugee and Immigrant Center for Education and Legal Services, Safe Horizon, Southeast Immigrant Rights Network, St. Louis Workers Education Society, We Belong Together, Worker Justice Center of New York, Inc, Workers Defense Project, Worksafe. (Attachments: # 1 Exhibit 1 − Additional Amici, # 2 Exhibit 2 − Amicus Curiae Brief)(McClellan, Nathan) (Filed on 3/22/2017) (Entered: 03/22/2017)
39 ADMINISTRATIVE MOTION Motion for Administrative Relief to File Brief of Amici Curiae filed by Ampush Media, Inc., Appboy Inc., Azavea, Checkr, Inc., Chegg Inc., Eventbrite, General Assembly, IDEO, Knotel, Managed by Q Inc., Mapbox, Marin Software, Minted LLC, SugarCRM Inc., Work & Co. Responses due by 3/27/2017. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Fritz, Kathryn) (Filed on 3/22/2017) (Entered: 03/22/2017)
40 MOTION to File Amicus Curiae Brief in Support of Motion(s) for Preliminary Injunction filed by County of Alameda, City of Berkeley, City of Davis, City of East Palo Alto, City of Fremont, County of Marin, County Of Monterey, City of Mountain View, City Of Oakland, City of Richmond, City of Salinas, City Of San Jose, City of Santa Cruz, City of Santa Rosa. Responses due by 4/5/2017. Replies due by 4/12/2017. (Attachments: # 1 Exhibit A (Brief of Amici Curiae California Cities and Counties), # 2 Proposed Order Granting Motion for Leave to File as Amici Curiae)(Ross, Linda) (Filed on 3/22/2017) (Entered: 03/22/2017)
41 MOTION to File Amicus Curiae Brief filed by Tahirih Justice Center, et al.. Responses due by 4/5/2017. Replies due by 4/12/2017. (Attachments: # 1 Proposed Brief, Amici Curiae, # 2 Proposed Order)(Gorelick, Jamie) (Filed on 3/22/2017) (Entered: 03/22/2017)
42 NOTICE of Appearance by Christine Van Aken Notice of Appearance of Christine Van Aken (Van Aken, Christine) (Filed on 3/23/2017) (Entered: 03/23/2017)
43 MOTION to Relate Case filed by city of richmond. (Attachments: # 1 Declaration of Nancy L. Fineman, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3 (part 1 of 4), # 5 Exhibit 3 (part 2 of 4), # 6 Exhibit 3 (Part 3 of 4), # 7 Exhibit 3 (part 4 of 4), # 8 Proposed Order)(Fineman, Nancy) (Filed on 3/23/2017) (Entered: 03/23/2017)
44 NOTICE of Appearance by Tara M. Steeley Notice of Appearance of Tara Steeley (Steeley, Tara) (Filed on 3/23/2017) (Entered: 03/23/2017)
45 NOTICE of Appearance by Neha Gupta Notice of Appearance of Neha Gupta (Gupta, Neha) (Filed on 3/23/2017) (Entered: 03/23/2017)
46 NOTICE of Appearance by Matthew Stephen Lee Notice of Appearance of Matthew S. Lee (Lee, Matthew) (Filed on 3/23/2017) (Entered: 03/23/2017)
47 ADMINISTRATIVE MOTION for Leave to File Brief as Amicus Curiae in Support of Plaintiff City and County of San Francisco's Motion for Preliminary Injunction filed by International Municipal Lawyers Association. Responses due by 3/27/2017. (Attachments: # 1 Proposed Brief of Amicus Curiae, # 2 Proposed Order)(Schuman, Brett) (Filed on 3/23/2017) (Entered: 03/23/2017)
48 NOTICE of Appearance by Brett Michael Schuman (Schuman, Brett) (Filed on 3/23/2017) (Entered: 03/23/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 25 of 41

03/23/2017 03/23/2017 03/23/2017 03/24/2017 03/24/2017 03/24/2017 03/28/2017 03/28/2017 03/28/2017
03/29/2017
03/29/2017 03/29/2017 03/29/2017
03/29/2017

49 NOTICE of Appearance by Indra Neel Chatterjee (Chatterjee, Indra) (Filed on 3/23/2017) (Entered: 03/23/2017)
50 NOTICE of Appearance by Nicholas A Reider (Reider, Nicholas) (Filed on 3/23/2017) (Entered: 03/23/2017)
51 NOTICE of Appearance by Hayes Phillips Hyde (Hyde, Hayes) (Filed on 3/23/2017) (Entered: 03/23/2017)
52 Statement of Non−Opposition re 43 MOTION to Relate Case Statement of Support Regarding City of Richmond's Administrative Motion to Consider Whether Cases Should Be Related filed byCity and County of San Francisco. (Related document(s) 43 ) (Lee, Mollie) (Filed on 3/24/2017) (Entered: 03/24/2017)
53 Order by Hon. William H. Orrick granting 43 Motion to Relate Case No. 3:17cv1535. (jmdS, COURT STAFF) (Filed on 3/24/2017) (Entered: 03/24/2017)
54 CERTIFICATE OF SERVICE by City and County of San Francisco re 52 Statement of Non−Opposition, Proof of Service (Lee, Mollie) (Filed on 3/24/2017) (Entered: 03/24/2017)
55 CERTIFICATE OF SERVICE by city of richmond by Personal Service of Summons, Complaint and Related Documents on the United States of America (Fineman, Nancy) (Filed on 3/28/2017) (Entered: 03/28/2017)
56 CERTIFICATE OF SERVICE by city of richmond by Certified Mail of Summons, Complaint and Related Documents on President Donald Trump, Attorney General Jefferson B. Sessions, Secretary of State of Homeland Security John F. Kelly and United States of America (Fineman, Nancy) (Filed on 3/28/2017) (Entered: 03/28/2017)
57 ORDER RESETTING HEARING DATE as to 21 MOTION for Preliminary Injunction. Motion Hearing reset for 4/14/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Signed by Judge William H. Orrick on 03/28/2017. (jmdS, COURT STAFF) (Filed on 3/28/2017) (Additional attachment(s) added on 3/28/2017: # 1 Corrected image) (jmdS, COURT STAFF). Modified on 3/28/2017 to add corrected (properly executed) order image. (jmdS, COURT STAFF). (Entered: 03/28/2017)
58 MOTION for Leave to File Amicus Curiae Brief filed by Public Schools, Public School Districts, and Associations of Educators. (Attachments: # 1 Exhibit A: [Proposed] Brief of Amici Curiae, # 2 Declaration of Ralph G. Porras, # 3 Declaration of Erika Torres, # 4 Declaration of Ricardo Mireles, # 5 Declaration of Sonia Picos, # 6 [Proposed] Order Granting Motion Leave)(Teshima, Darren) (Filed on 3/29/2017) (Entered: 03/29/2017)
59 ADMINISTRATIVE MOTION Leave to File Amici Curiae Brief filed by Individual Sheriffs and Police Chiefs. Responses due by 4/3/2017. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Proposed Order)(Piers, Matthew) (Filed on 3/29/2017) (Entered: 03/29/2017)
60 REPLY (re 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof ) City and County of San Francisco's Reply to Opposition to Motion for Preliminary Injunction filed byCity and County of San Francisco. (Eisenberg, Sara) (Filed on 3/29/2017) (Entered: 03/29/2017)
61 Request for Judicial Notice re 21 MOTION for Preliminary Injunction City and County of San Francisco's Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support Thereof Supplemental Request for Judicial Notice in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 21 ) (Eisenberg, Sara) (Filed on 3/29/2017) (Entered: 03/29/2017)
62 MOTION for Leave to File Amicus Brief of 36 Cities and Counties in Support of City and County of San Francisco's Motion for Preliminary Injunction filed by City of

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 26 of 41

03/29/2017 03/29/2017 03/29/2017 03/29/2017 03/29/2017 03/29/2017
04/05/2017 04/06/2017 04/06/2017 04/07/2017 04/11/2017

Menlo Park, City of New Orleans. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Dermody, Kelly) (Filed on 3/29/2017) (Entered: 03/29/2017)
63 MOTION for Leave to File An Amicus Curiae Brief In Support of Plaintiff's Motion for Preliminary Injunction filed by Constitutional Law Scholars. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Gewertz, Nevin) (Filed on 3/29/2017) (Entered: 03/29/2017)
64 MOTION to File Amicus Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction filed by Tom Torlakson. Motion Hearing set for 4/14/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 4/5/2017. Replies due by 4/12/2017. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Prouty, Thomas) (Filed on 3/29/2017) (Entered: 03/29/2017)
65 Amicus Curiae APPEARANCE entered by Lisa Catherine Ehrlich on behalf of State of California. (Ehrlich, Lisa) (Filed on 3/29/2017) (Entered: 03/29/2017)
66 ADMINISTRATIVE MOTION LEAVE TO FILE AMICUS CURIAE BRIEF filed by State of California. Responses due by 4/3/2017. (Attachments: # 1 AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, # 2 Proposed Order GRANTING STATE OF CALIFORNIA'S ADMINISTRATIVE MOTION FOR LEAVE TO FILE AN AMICUS BRIEF)(Ehrlich, Lisa) (Filed on 3/29/2017) (Entered: 03/29/2017)
67 MOTION to File Amicus Curiae Brief Motion for Leave to File Brief of Amicus Curiae Anti−Defamation League in Support of Plaintiff's Motion for Preliminary Injunction filed by Anti−Defamation League. Responses due by 4/12/2017. (Attachments: # 1 Brief of Amicus Curiae, # 2 Proposed Order)(Perrin, Robert) (Filed on 3/29/2017) (Entered: 03/29/2017)
68 MOTION to File Amicus Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction filed by API Council of San Francisco, California Association of Nonprofits, Coalition of Agencies Serving the Elderly, Council of Community Housing Organizations, HIV/AIDS Provider Network, Homeless Emergency Service Providers Association, Long Term Care Coordinating Council, San Francisco Human Services Network, San Francisco Interfaith Council, San Francisco Latino Parity and Equity Coalition, San Francisco Mental Health Contractors Association, Silicon Valley Council of Nonprofits, Supportive Housing Providers Network. Motion Hearing set for 4/14/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 4/12/2017. Replies due by 4/19/2017. (Attachments: # 1 Brief of Nonprofit Associations as Amici Curiae in Support of Plaintiff's Motion for Preliminary Injunction, # 2 Appendix Appendix A to Motion for Leave to File Brief as Amici Curiae and Brief of Amici Curiae, # 3 Proposed Order [Proposed] Order Granting Nonprofit Associations' Motion for Leave to File Brief as Amici Curiae)(Alger, Maureen) (Filed on 3/29/2017) (Entered: 03/29/2017)
69 Letter from Fenwick & West LLP re Joinder of San Jose/Silicon Valley NAACP in Motion for Leave to File an Amicus Brief and the Proposed Brief of Amici Curiae Southern Poverty Law Center. (Ghassemi−Vanni, Sheeva) (Filed on 4/5/2017) (Entered: 04/05/2017)
70 CLERK'S NOTICE of time change for hearing as to 21 MOTION for Preliminary Injunction. Motion Hearing reset for 4/14/2017 09:00 AM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Hearings inadvertently set for motions to file amicus briefs are VACATED. No oral argument is needed as to these motions. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 4/6/2017) (Entered: 04/06/2017)
71 NOTICE of Appearance by Annasara Guzzo Purcell Amici Curiae Technology Companies (Purcell, Annasara) (Filed on 4/6/2017) (Entered: 04/06/2017)
72 Order by Hon. William H. Orrick granting 34 Stipulation. Defendant's response to the plaintiff's complaint shall be filed no later than April 28, 2017. (jmdS, COURT STAFF) (Filed on 4/7/2017) (Entered: 04/07/2017)
73 NOTICE of Appearance by W. Scott Simpson Additional Counsel for Defendants (Simpson, W.) (Filed on 4/11/2017) (Entered: 04/11/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 27 of 41

04/13/2017 04/14/2017
04/14/2017 04/14/2017 04/14/2017 04/14/2017 04/17/2017
04/25/2017 04/25/2017 04/25/2017
04/25/2017

74 Request for Judicial Notice Second Supplemental Request for Judicial Notice in Support of City and County of San Francisco's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lee, Mollie) (Filed on 4/13/2017) (Entered: 04/13/2017)
75 Minute Entry for proceedings held before Hon. William H. Orrick: Motion Hearing held on 4/14/2017 re Motions for Preliminary Injunction. Hearing conducted to the constitutionality of the Executive Order regarding sanctuary jurisdictions. A case management conference is set for April 25, 2017 at 1:30 p.m. in Case No. 3:17cv485 to discuss litigation of the Section 1373 issues, which would benefit from a more comprehensive record. Argument of counsel heard. Motions taken under submission; written order to follow. Total Time in Court 1 hour, 9 minutes. Court Reporter Name Katherine Sullivan. (jmdS, COURT STAFF) (Date Filed: 4/14/2017) (Entered: 04/14/2017)
Set Hearing: Case Management Conference set for 4/25/2017 01:30 PM in Courtroom 2, 17th Floor, San Francisco. (jmdS, COURT STAFF) (Filed on 4/14/2017) Modified on 4/14/2017 to correct date (jmdS, COURT STAFF). (Entered: 04/14/2017)
76 TRANSCRIPT ORDER for proceedings held on April 14, 2017 before Hon. William H. Orrick by City of Richmond, for Court Reporter Katherine Sullivan. (Fineman, Nancy) (Filed on 4/14/2017) (Entered: 04/14/2017)
77 TRANSCRIPT ORDER for proceedings held on 4/14/2017 before Hon. William H. Orrick by City and County of San Francisco, for Court Reporter Katherine Sullivan. (Lee, Mollie) (Filed on 4/14/2017) (Entered: 04/14/2017)
78 TRANSCRIPT ORDER for proceedings held on 4/14/2017 before Hon. William H. Orrick by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America, for Court Reporter Katherine Sullivan. (Simpson, W.) (Filed on 4/14/2017) (Entered: 04/14/2017)
79 Transcript of Proceedings held on 4/14/17, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (76 in 3:17−cv−00485−WHO) Transcript Order, (94 in 3:17−cv−00574−WHO) Transcript Order, (78 in 3:17−cv−00485−WHO) Transcript Order, (77 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 5/8/2017. Redacted Transcript Deadline set for 5/18/2017. Release of Transcript Restriction set for 7/17/2017. (Sullivan, Katherine) (Filed on 4/17/2017) (Entered: 04/17/2017)
80 CLERK'S NOTICE − Case Management Conference set for today (4/25/2017) at 1:30 p.m. is VACATED. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
81 CLERK'S NOTICE − The start time of the Case Management Conference set for 5/2/2017 is advanced to 01:30 PM in Courtroom 2, 17th Floor, San Francisco. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
82 ORDER GRANTING THE COUNTY OF SANTA CLARA'S AND CITY AND COUNTY OF SAN FRANCISCO'S MOTIONS TO ENJOIN SECTION 9(a) OF EXECUTIVE ORDER 13768 by Judge William H. Orrick re: (21) Motion for Preliminary Injunction in case 3:17−cv−00485−WHO and (26) Motion for Preliminary Injunction in case 3:17−cv−00574−WHO. All pending administrative motions for leave to file Amicus Briefs are also GRANTED. (jmdS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
83 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by City and County of San Francisco. (Lee, Mollie) (Filed on 4/25/2017) (Entered: 04/25/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 28 of 41

04/28/2017 05/01/2017 05/01/2017 05/01/2017 05/02/2017
05/02/2017 05/02/2017 05/04/2017 05/05/2017 05/08/2017
05/08/2017 05/08/2017

84 STIPULATION WITH PROPOSED ORDER re 72 Order on Stipulation filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 4/28/2017) (Entered: 04/28/2017)
85 EX PARTE REQUEST TO NOTICE AMICUS BRIEF SUBMITTED TO U.S. DEPARTMENT OF JUSTICE & U.S. DEPARTMENT OF HOMELAND SECURITY REGARDING MATTERS WITHIN; EX.X IN SUPPORT; filed by Franklin H. Wright. (aaa, COURT STAFF) (Filed on 5/1/2017) (Entered: 05/01/2017)
86 STIPULATION AND ORDER by Hon. William H. Orrick granting 84 Stipulation to extend time to file response to First Amended Complaint. (jmdS, COURT STAFF) (Filed on 5/1/2017) (Entered: 05/01/2017)
87 Order by Hon. William H. Orrick denying 85 Ex Parte Application as Moot. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 5/1/2017) (Entered: 05/01/2017)
88 Minute Entry for proceedings held before Hon. William H. Orrick: Case Management Conference held on 5/2/2017. The hearing set for May 9, 2017 on the City of Richmond's Motion for Preliminary Injunction is VACATED. Close of Fact Discovery: 10/31/2017. Dispositive Motions to be heard by 1/10/2018. Pretrial Conference set for 4/2/2018 02:00 PM and Bench Trial set for 4/23/2018 08:00 AM before Hon. William H. Orrick, both in Courtroom 2, 17th Floor, San Francisco. FTR Time 1:32−2:01. (jmdS, COURT STAFF) (Date Filed: 5/2/2017) Modified on 5/3/2017: Matter transcribed by Leo Mankiewicz. (rjdS, COURT STAFF). (Entered: 05/03/2017)
89 AMENDED 85 EX PARTE REQUEST TO NOTICE AMICUS BRIEF SUBMITTED TO U.S. DEPARTMENT OF JUSTICE & U.S. DEPARTMENT OF HOMELAND SECURITY REGARDING MATTERS WITHIN; DECLARATION OF FRANKLIN H. WRIGHT IN SUPPORT; filed by Franklin H. Wright. Responses due by 5/16/2017. Replies due by 5/23/2017. (aaa, COURT STAFF) (Filed on 5/2/2017) (Entered: 05/03/2017)
90 DECLARATION of FRANKLIN H. WRIGHT in Support of 89 AMENDED MOTION; filed byFranklin H. Wright. (Related document(s) 89 ) (aaa, COURT STAFF) (Filed on 5/2/2017) (Entered: 05/03/2017)
91 ORDER DENYING 89 AMENDED EX PARTE MOTION TO NOTICE AMICUS BRIEF by Judge William H. Orrick. Mr. Wright is instructed not to file any additional papers in this case or in the related Santa Clara and Richmond actions. The court clerk is instructed not to file any of Mr. Wrights papers on the docket. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 5/4/2017) (Entered: 05/04/2017)
92 STIPULATION WITH PROPOSED ORDER re 86 Order on Stipulation filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 5/5/2017) (Entered: 05/05/2017)
93 Transcript of Proceedings held on 05/02/2017, before Judge William H. Orrick. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; leomank@gmail.com. FTR 1:32 p.m. − 2:02 p.m. = 30 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (103 in 3:17−cv−00574−WHO) Transcript Order ) Redaction Request due 5/30/2017. Redacted Transcript Deadline set for 6/8/2017. Release of Transcript Restriction set for 8/7/2017. (Mankiewicz, Leo) (Filed on 5/8/2017) (Entered: 05/08/2017)
94 TRANSCRIPT ORDER for proceedings held on May 2, 2017 before Hon. William H. Orrick by City and County of San Francisco, for Court Reporter Leo Mankiewicz. (Lee, Mollie) (Filed on 5/8/2017) (Entered: 05/08/2017)
95 TRANSCRIPT ORDER for proceedings held on May 2, 2017 before Hon. William H. Orrick by Anti−Defamation League, for Court Reporter Leo Mankiewicz. (Perrin, Robert) (Filed on 5/8/2017) (Entered: 05/08/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 29 of 41

05/09/2017 05/10/2017 05/17/2017 05/22/2017 05/22/2017 05/22/2017 05/22/2017
05/23/2017
05/23/2017 05/23/2017 05/23/2017
05/23/2017
06/06/2017
06/06/2017

96 STIPULATION AND ORDER. Signed by Judge William H. Orrick on 05/09/2017. (jmdS, COURT STAFF) (Filed on 5/9/2017) (Entered: 05/09/2017)
97 STIPULATION Re Initial Disclosures filed by City and County of San Francisco. (Lee, Mollie) (Filed on 5/10/2017) (Entered: 05/10/2017)
98 Mail sent to Franklin H. Wright returned as undeliverable re 91 Order on Motion to Amend/Correct. (aaaS, COURT STAFF) (Filed on 5/17/2017) (Entered: 05/18/2017)
99 Motion to file AMICUS BRIEF; filed byLamar C. Chapman, III. (Attachments: # 1 Envelope)(aaa, COURT STAFF) (Filed on 5/22/2017) PER CHAMBERS (Entered: 05/22/2017)
100 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order for Filing Amended Complaint filed by City and County of San Francisco. (Lee, Mollie) (Filed on 5/22/2017) (Entered: 05/22/2017)
101 Order by Hon. William H. Orrick denying 99 Motion for Leave to File Amicus Brief. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 5/22/2017) (Entered: 05/22/2017)
102 MOTION for Leave to File Motion for Reconsideration or, in the Alternative, for Clarification filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Attachments: # 1 Memorandum from the Attorney General for All Department Grant−Making Components (May 22, 2017), # 2 Defendants' Motion for Reconsideration or, in the Alternative, for Clarification, # 3 Proposed Order)(Simpson, W.) (Filed on 5/22/2017) (Entered: 05/22/2017)
103 OPPOSITION/RESPONSE (re 102 MOTION for Leave to File Motion for Reconsideration or, in the Alternative, for Clarification ) Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Leave to File a Motion for Reconsideration of the Court's Order of April 25, 2017 filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 5/23/2017) (Entered: 05/23/2017)
104 ORDER FOR FILING AMENDED COMPLAINT by Hon. William H. Orrick granting 100 Stipulation. (jmdS, COURT STAFF) (Filed on 5/23/2017) (Entered: 05/23/2017)
105 SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; against All Defendants. Filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 5/23/2017) Modified on 5/24/2017 (aaaS, COURT STAFF). (Entered: 05/23/2017)
106 ORDER GRANTING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION by Judge William H. Orrick re (102) Motion for Leave to File in case 3:17−cv−00485−WHO and (108) Motion for Leave to File in case 3:17−cv−00574−WHO. (jmdS, COURT STAFF) (Filed on 5/23/2017) (Entered: 05/23/2017)
107 NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF THE COURT'S 82 ORDER OF APRIL 25, 2017; MEMORANDUM OF POINTS & AUTHORITIES; filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. Deemed filed on 5/23/2017 per 106 Order. Oppositions due June 6, 2017. (jmdS, COURT STAFF) (Filed on 5/23/2017) Modified on 5/24/2017 (aaaS, COURT STAFF). (Entered: 05/23/2017)
108 OPPOSITION/RESPONSE (re 107 MOTION for Reconsideration re 106 Order on Motion for Leave to File,,, ) Plaintiff City and County of San Francisco's Opposition to Defendants' Notice of Motion and Motion for Reconsideration, or in the Alternative, Clarification of the Court's Order of April 25, 2017 filed byCity and County of San Francisco. (Eisenberg, Sara) (Filed on 6/6/2017) (Entered: 06/06/2017)
109 Request for Judicial Notice Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Reconsideration, or in the Alternative, Clarification of the Court's Order of April 25, 2017 filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 30 of 41

06/06/2017
06/06/2017
06/09/2017
06/13/2017 06/16/2017 06/20/2017 06/20/2017
06/23/2017 06/26/2017 06/28/2017 06/28/2017 06/28/2017

I)(Eisenberg, Sara) (Filed on 6/6/2017) (Entered: 06/06/2017)
110 Declaration in Support of 108 Opposition/Response to Motion, Declaration of Sara J. Eisenberg in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Notice of Motion and Motion for Reconsideration, or in the alternative, Clarification of the Court's Order of April 25, 2017 filed byCity and County of San Francisco. (Related document(s) 108 ) (Eisenberg, Sara) (Filed on 6/6/2017) (Entered: 06/06/2017)
111 MOTION to Dismiss filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. Motion Hearing set for 7/19/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 6/20/2017. Replies due by 6/27/2017. (Attachments: # 1 Mem. from Atty Gen. for All Dept Grant−Making Components (May 22, 2017), # 2 Proposed Order)(Simpson, W.) (Filed on 6/6/2017) (Entered: 06/06/2017)
112 CLERK'S NOTICE − Motion Hearing reset for 7/12/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick (to comply with 102 minute order). Re: 115 Motion to Dismiss in 3:17−cv−00574−WHO, 111 Motion to Dismiss in 3:17−cv−00485−WHO, and 26 MOTION to Dismiss in 3:17−cv−01535−WHO. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 6/9/2017) (Entered: 06/09/2017)
113 REPLY (re 107 MOTION for Reconsideration re 106 Order on Motion for Leave to File,,, ) filed byJohn F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 6/13/2017) (Entered: 06/13/2017)
114 Joint MOTION to File Amicus Curiae Brief In Support of United States' Motion to Dismiss filed by States of West Virginia, Louisiana, et al.. Responses due by 6/30/2017. Replies due by 7/7/2017. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Johnson, Thomas) (Filed on 6/16/2017) (Entered: 06/16/2017)
115 OPPOSITION/RESPONSE (re 111 MOTION to Dismiss ) Plaintiff City and County of San Francisco's Opposition to Defendants' Notice of Motion and Motion to Dismiss filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 6/20/2017) (Entered: 06/20/2017)
116 Request for Judicial Notice re 115 Opposition/Response to Motion, Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Notice of Motion and Motion to Dismiss filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit M, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Related document(s) 115 ) (Lee, Mollie) (Filed on 6/20/2017) (Entered: 06/20/2017)
117 STIPULATION WITH PROPOSED ORDER re 115 Opposition/Response to Motion, filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 6/23/2017) (Entered: 06/23/2017)
118 ORDER continuing reply deadline re: Motions to Dismiss. Replies due by 6/29/2017. Signed by Judge William H. Orrick on 06/26/2017. (jmdS, COURT STAFF) (Filed on 6/26/2017) (Entered: 06/26/2017)
119 ADMINISTRATIVE MOTION Leave to File Amicus Brief Supporting Plaintiffs filed by Service Employees International Union, Working Partnerships USA. Responses due by 7/5/2017. (Attachments: # 1 Supplemental Amicus Brief, # 2 Proposed Order)(Prestel, Claire) (Filed on 6/28/2017) (Entered: 06/28/2017)
120 ADMINISTRATIVE MOTION for Leave to File Brief as Amicus Curiae in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss filed by International Municipal Lawyers Association. Responses due by 7/3/2017. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Proposed Order)(Chatterjee, Indra) (Filed on 6/28/2017) (Entered: 06/28/2017)
121 ADMINISTRATIVE MOTION for Leave to File Brief as Amicus Curiae in Support of Plaintiff's 115 Opposition to Defendants' 111 Motion to Dismiss filed by Tahirih

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 31 of 41

06/28/2017 06/28/2017 06/28/2017
06/28/2017 06/28/2017 06/28/2017 06/28/2017 06/28/2017

Justice Center, et al.. Responses due by 7/3/2017. (Attachments: # 1 Exhibit 1: Proposed Brief, # 2 Exhibit 2: Proposed Order)(Gorelick, Jamie) (Filed on 6/28/2017) (Entered: 06/28/2017)
122 MOTION for Leave to File An Amicus Curiae Brief In Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Constitutional Law Scholars, Professors of Constitutional Law, Administrative L Immigration Law. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Gewertz, Nevin) (Filed on 6/28/2017) (Entered: 06/28/2017)
123 MOTION to File Amicus Curiae Brief Motion for Leave to File Statement of Amicus Curiae Anti−Defamation League in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Anti−Defamation League. Responses due by 7/12/2017. Replies due by 7/19/2017. (Attachments: # 1 Proposed Statement, # 2 Proposed Order)(Perrin, Robert) (Filed on 6/28/2017) (Entered: 06/28/2017)
124 ADMINISTRATIVE MOTION for Leave to File Amicus Curiae Brief filed by Adelante Alabama Worker Center, Alabama Coalition for Immigrant Justice, American Federation of Teachers, Americans for Immigrant Justice, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice − AAJC, Asian Americans Advancing Justice − Asian Law Caucus, Asian Americans Advancing Justice − Los Angeles, Asian Americans Advancing Justice−Atlanta, Coalition for Humane Immigrant Rights, Equal Rights Advocates, Florida Immigrant Coaltion, Inc, Florida Legal Services, Inc, Greater Birmingham Ministries, Greater Rochester Coalition for Immigration Justice, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, Jobs With Justice, Justice in Motion, Latin American Legal Defense and Education Fund, LatinoJustice PRLDEF, National Employment Law Project, National Immigration Law Center, New Orleans Workers' Center for Racial Justice, Northwest Forest Worker Center, Refugee and Immigrant Center for Education and Legal Services, Safe Horizon, Southeast Immigrant Rights Network, Southern Poverty Law Center, St. Louis Workers Education Society, We Belong Together, Work & Co, Worker Justice Center of New York, Inc, Workers Defense Project, Worksafe, National Center for Lesbian Rights, Tennessee Immigrant and Refugee Rights Coalition. Responses due by 7/3/2017. (Attachments: # 1 Exhibit 1 − Additional Amici, # 2 Exhibit 2 − Proposed Amicus Brief)(McClellan, Nathan) (Filed on 6/28/2017) (Entered: 06/28/2017)
125 ADMINISTRATIVE MOTION for Leave to File Amicus Brief re 111 MOTION to Dismiss filed by 48 Cities and Counties. Responses due by 7/3/2017. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Dermody, Kelly) (Filed on 6/28/2017) (Entered: 06/28/2017)
126 ADMINISTRATIVE MOTION for Leave to File as Amici Curiae in Opposition to Defendants' Motion to Dismiss re 111 MOTION to Dismiss filed by City Of Oakland, City Of San Jose, City of Berkeley, City of Davis, City of East Palo Alto, City of Fremont, City of Mountain View, City of Richmond, City of Salinas, City of Santa Cruz, City of Santa Rosa, County Of Monterey, County of Alameda, County of Marin. Responses due by 7/3/2017. (Attachments: # 1 Proposed Order)(Ross, Linda) (Filed on 6/28/2017) (Entered: 06/28/2017)
127 ADMINISTRATIVE MOTION Administrative Motion By California, Connecticut, Delaware, District Of Columbia, Illinois, Maryland, Massachusetts, New Mexico, New York, Oregon, And Washington For Leave To File An Amicus Curiae Brief In Support Of Plaintiffs Oppositions To Defendants Motions To Dismiss filed by State of California. Responses due by 7/3/2017. (Attachments: # 1 Exhibit Multi−state Amicus Curiae Brief of California et al., # 2 Proposed Order)(Ehrlich, Lisa) (Filed on 6/28/2017) (Entered: 06/28/2017)
128 ADMINISTRATIVE MOTION for Leave to File Amicus Brief filed by Tom Torlakson. Responses due by 7/3/2017. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Prouty, Thomas) (Filed on 6/28/2017) (Entered: 06/28/2017)
129 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by Appboy Inc., Azavea, Checkr, Inc., Chegg Inc., General Assembly, IDEO, Knotel, Mapbox, Marin Software, Minted LLC, Work & Co. Responses due by 7/3/2017. (Attachments: # 1 Exhibit 1 − Amicus Brief, # 2 Exhibit 2 − Proposed Order)(Premo, Patrick) (Filed on 6/28/2017) (Entered: 06/28/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 32 of 41

06/28/2017
06/28/2017 06/28/2017 06/29/2017 07/03/2017 07/06/2017 07/06/2017 07/06/2017 07/07/2017
07/07/2017 07/12/2017

130 MOTION for Leave to File Brief as Amici Curiae filed by API Council of San Francisco, California Association of Nonprofits, Coalition of Agencies Serving the Elderly, Council of Community Housing Organizations, HIV/AIDS Provider Network, Homeless Emergency Service Providers Association, Long Term Care Coordinating Council, San Francisco Human Services Network, San Francisco Interfaith Council, San Francisco Latino Parity and Equity Coalition, San Francisco Mental Health Contractors Association, Silicon Valley Council of Nonprofits, Supportive Housing Providers Network. (Attachments: # 1 Exhibit Brief of Nonprofit Associations as Amici Curiae in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss, # 2 Appendix Appendix A, # 3 Proposed Order Proposed Order Granting Nonprofit Associations' Motion for Leave to File Brief as Amici Curiae)(Alger, Maureen) (Filed on 6/28/2017) (Entered: 06/28/2017)
131 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by Individual Sheriffs and Police Chiefs. Responses due by 7/3/2017. (Attachments: # 1 Proposed Brief, # 2 Proposed Order)(Piers, Matthew) (Filed on 6/28/2017) (Entered: 06/28/2017)
132 MOTION for Leave to File Supplemental Brief of Amici Curiae filed by Public Schools, Public School Districts, and Associations of Educators. (Attachments: # 1 Exhibit A: [Proposed] Supplemental Brief of Amici Curiae, # 2 [Proposed] Order Granting Motion Leave)(Teshima, Darren) (Filed on 6/28/2017) (Entered: 06/28/2017)
133 REPLY (re 111 MOTION to Dismiss ) filed byJohn F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 6/29/2017) (Entered: 06/29/2017)
134 STIPULATION WITH PROPOSED ORDER re 112 Clerk's Notice,, Set Motion and Deadlines/Hearings, filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 7/3/2017) (Entered: 07/03/2017)
135 JOINDER; by City and County of San Francisco Plaintiff City and County of San Francisco's Notice of Joinder and Joinder in Plaintiff County of Santa Clara's Motion for Leave to File a Surreply in Opposition to Defendants' 111 Motion to Dismiss (Lee, Mollie) (Filed on 7/6/2017) Modified on 7/7/2017 (aaaS, COURT STAFF). (Entered: 07/06/2017)
136 Request for Judicial Notice Supplemental Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion to Dismiss filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 7/6/2017) (Entered: 07/06/2017)
Electronic filing error. Incorrect event used. [err101]Corrected by Clerk's Office. No further action is necessary. Re: 135 Notice (Other), filed by City and County of San Francisco Correct Event is Joinder not Notice. (aaaS, COURT STAFF) (Filed on 7/6/2017) (Entered: 07/07/2017)
137 Joinder AND JOINDER IN PLAINTIFF COUNTY OF SANTA CLARAS (1) MOTION FOR LEAVE TO FILE A SURREPLY AND (2) SURREPLY IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS AND PLAINTIFF RICHMONDS JOINDER IN CITY AND COUNTY OF SAN FRANCISCOS SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION TO DISMISS by City of Richmond. (Attachments: # 1 Proposed Order GRANTING PLAINTIFF CITY OF RICHMONDS NOTICE OF JOINDER AND JOINDER IN PLAINTIFF COUNTY OF SANTA CLARAS (1) MOTION FOR LEAVE TO FILE A SURREPLY AND (2) SURREPLY IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS AND PLAINTIFF RICHMONDS 135 JOINDER IN CITY AND COUNTY OF SAN FRANCISCOS SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION TO DISMISS)(Fineman, Nancy) (Filed on 7/7/2017) Modified on 7/10/2017 (aaaS, COURT STAFF). (Entered: 07/07/2017)
138 NOTICE of Appearance by W. Scott Simpson Additional Counsel for Defendants (Simpson, W.) (Filed on 7/7/2017) (Entered: 07/07/2017)
139 Request for Judicial Notice Second Supplemental Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion to Dismiss filed byCity and County of San Francisco. (Lee, Mollie) (Filed on

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 33 of 41

07/12/2017 07/12/2017 07/12/2017
07/13/2017 07/14/2017
07/18/2017 07/20/2017
08/03/2017 08/04/2017 08/15/2017 08/15/2017

7/12/2017) (Entered: 07/12/2017)
140 TRANSCRIPT ORDER for proceedings held on 7/12/2017 before Hon. William H. Orrick by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America, for Court Reporter Katherine Sullivan. (Simpson, W.) (Filed on 7/12/2017) (Entered: 07/12/2017)
141 TRANSCRIPT ORDER for proceedings held on 7/12/2017 before Hon. William H. Orrick by City and County of San Francisco, for Court Reporter Katherine Sullivan. (Lee, Mollie) (Filed on 7/12/2017) (Entered: 07/12/2017)
142 Minute Entry for proceedings held before Hon. William H. Orrick: Motion Hearing held on 7/12/2017 re (26 in 3:17−cv−01535−WHO) MOTION to Dismiss, (115 in 3:17−cv−00574−WHO) MOTION to Dismiss, (107 in 3:17−cv−00485−WHO) MOTION for Reconsideration (111 in 3:17−cv−00485−WHO). Motions taken under submission; written order(s) to follow. Total Time in Court 34 minutes. Court Reporter Name Katherine Sullivan. (jmdS, COURT STAFF) (Date Filed: 7/12/2017) (Entered: 07/12/2017)
143 TRANSCRIPT ORDER for proceedings held on July 12, 2017 before Hon. William H. Orrick by Anti−Defamation League, for Court Reporter Katherine Sullivan. (Perrin, Robert) (Filed on 7/13/2017) (Entered: 07/13/2017)
144 Transcript of Proceedings held on 7/12/17, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (38 in 3:17−cv−01535−WHO) Transcript Order, (141 in 3:17−cv−00485−WHO) Transcript Order, (141 in 3:17−cv−00574−WHO) Transcript Order, (140 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 8/4/2017. Redacted Transcript Deadline set for 8/14/2017. Release of Transcript Restriction set for 10/12/2017. (Sullivan, Katherine) (Filed on 7/14/2017) (Entered: 07/14/2017)
145 NOTICE of Appearance by Aileen Marie McGrath Notice of Appearance of Counsel (McGrath, Aileen) (Filed on 7/18/2017) (Entered: 07/18/2017)
146 ORDER DENYING THE GOVERNMENT'S MOTIONS FOR RECONSIDERATION AND TO DISMISS WITH REGARDS TO THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY OF SANTA CLARA by Judge William H. Orrick denying (107) Motion for Reconsideration and (111) Motion to Dismiss in case 3:17−cv−00485−WHO and denying (113) Motion for Reconsideration and (115) Motion to Dismiss in case 3:17−cv−00574−WHO. (jmdS, COURT STAFF) (Filed on 7/20/2017) (Entered: 07/20/2017)
147 STIPULATION WITH PROPOSED ORDER re 146 Order on Motion for Reconsideration,, Order on Motion to Dismiss,,,,, filed by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 8/3/2017) (Entered: 08/03/2017)
148 ORDER REGARDING DEADLINE TO ANSWER by Hon. William H. Orrick granting 147 Stipulation in case 3:17−cv−00485−WHO. Associated Cases: 3:17−cv−00485−WHO, 3:17−cv−00574−WHO. (jmdS, COURT STAFF) (Filed on 8/4/2017) (Entered: 08/04/2017)
149 First MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) filed by City and County of San Francisco. (Lee, Mollie) (Filed on 8/15/2017) (Entered: 08/15/2017)
150 Declaration of Mollie M. Lee in Support of 149 First MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) Declaration of Mollie M. Lee in Support of Administrative Motion to Consider Whether Cases Should Be Related filed byCity and County of San Francisco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 34 of 41

08/15/2017 08/16/2017
08/17/2017 08/17/2017 08/18/2017 08/23/2017 08/25/2017 08/30/2017 08/30/2017 08/30/2017 08/30/2017

3)(Related document(s) 149 ) (Lee, Mollie) (Filed on 8/15/2017) (Entered: 08/15/2017)
151 Proposed Order re 149 First MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) [Proposed] Order Granting Administrative Motion to Consider Whether Cases Should Be Related by City and County of San Francisco. (Lee, Mollie) (Filed on 8/15/2017) (Entered: 08/15/2017)
152 ANSWER to 105 Second Amended Complaint; by John F Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Attachments: # 1 U.S. Immigration and Customs Enforcement, Policy Number 10074.2, Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), # 2 Department of Homeland Security, Immigration Detainer − Notice of Action, DHS Form I−247A (3/17), # 3 ICE Guidance for Completing Form I−247A, # 4 U.S. Department of Homeland Security, Warrant for Arrest of Alien, Form I−200 (Rev. 09/16), # 5 Department of Homeland Security, U.S. Immigration and Customs Enforcement, Warrant of Removal/ Deportation, ICE Form I−205 (8/07), # 6 Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373, # 7 Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373)(Simpson, W.) (Filed on 8/16/2017) Modified on 8/17/2017 (aaaS, COURT STAFF). (Entered: 08/16/2017)
153 Supplemental Brief re 149 First MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) filed byCity and County of San Francisco. (Related document(s) 149 ) (Lee, Mollie) (Filed on 8/17/2017) (Entered: 08/17/2017)
154 Declaration of Mollie M. Lee in Support of 153 Supplemental Brief, DECLARATION OF MOLLIE M. LEE IN SUPPORT OF SUPPLEMENTAL STATEMENT IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO N.D. CAL. CIVIL L.R. 3−12(B) filed byCity and County of San Francisco. (Related document(s) 153 ) (Lee, Mollie) (Filed on 8/17/2017) (Entered: 08/17/2017)
155 OPPOSITION/RESPONSE (re 149 First MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) ) filed byJefferson B. Sessions, Donald J. Trump, United States of America, Elaine C. Duke. (Simpson, W.) (Filed on 8/18/2017) (Entered: 08/18/2017)
156 Order by Hon. William H. Orrick granting 149 Motion to Relate Case No. 3:17cv4642−SBA. (jmdS, COURT STAFF) (Filed on 8/23/2017) (Entered: 08/23/2017)
157 RELATED CASE ORDER. Case No. 3:17cv4701 will be reassigned and related. Signed by Judge William H. Orrick on 08/25/2017. (jmdS, COURT STAFF) (Filed on 8/25/2017) (Entered: 08/25/2017)
158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed by City and County of San Francisco. Motion Hearing set for 10/4/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 9/13/2017. Replies due by 9/20/2017. (Attachments: # 1 Proposed Order)(Lee, Mollie) (Filed on 8/30/2017) (Entered: 08/30/2017)
159 Declaration of Ben Rosenfield in Support of 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Related document(s) 158 ) (Lee, Mollie) (Filed on 8/30/2017) (Entered: 08/30/2017)
160 Declaration of Sheriff Vicki Hennessy in Support of 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Related document(s) 158 ) (Lee, Mollie) (Filed on 8/30/2017) (Entered: 08/30/2017)
161 Declaration of Lieutenant James Quanico in Support of 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Related document(s) 158 ) (Lee, Mollie) (Filed on 8/30/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 35 of 41

08/30/2017 08/30/2017
09/07/2017 09/11/2017 09/11/2017
09/13/2017 09/18/2017 09/20/2017 09/21/2017

(Entered: 08/30/2017)
162 ERRONEOUSLY E−FILED: PLEASE SEE DOCKET NUMBER 167 FOR THE CORRECT E−FILING Declaration of Melissa Whitehouse in Support of 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Related document(s) 158 ) (Lee, Mollie) (Filed on 8/30/2017) Modified on 9/14/2017 (aaaS, COURT STAFF). (Entered: 08/30/2017)
163 Request for Judicial Notice re 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Related document(s) 158 ) (Lee, Mollie) (Filed on 8/30/2017) (Entered: 08/30/2017)
164 MOTION for Extension of Time to File Response/Reply as to 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed by Elaine C. Duke, Jefferson B. Sessions, Donald J. Trump, United States of America. (Attachments: # 1 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 9/7/2017) (Entered: 09/07/2017)
165 OPPOSITION/RESPONSE (re 164 MOTION for Extension of Time to File Response/Reply as to 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment ) filed byCity and County of San Francisco. (Attachments: # 1 Declaration of Mollie M. Lee In Support of City and County of San Francisco's Opposition To Defendants' Motion For Enlargement of Time)(Lee, Mollie) (Filed on 9/11/2017) (Entered: 09/11/2017)
166 ORDER CONDITIONALLY GRANTING DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME re (Dkt. 164 in 3:17−cv−00485−WHO and Dkt. 162 in 3:17−cv−00574−WHO). Deadlines and hearings continued as to (158) MOTION for Summary Judgment and (151) MOTION for Summary Judgment. Responses due by 9/27/2017. Replies due by 10/4/2017. Motion Hearing reset for 10/18/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. If defendants do not wish to delay their stay request, they should file their opposition as scheduled and the current dates for the reply (September 20) and hearing (October 4) will remain. Signed by Judge William H. Orrick on 09/11/2017. (jmdS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
167 CORRECTION OF DOCKET 162 DECLARATION OF MELISSA WHITEHOUSE IN SUPPORT OF CITY AND COUNTY OF SAN FRANCISCO'S 158 MOTION FOR SUMMARY JUDGMENT; filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 9/13/2017) Modified on 9/14/2017 (aaaS, COURT STAFF). (Entered: 09/13/2017)
168 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Elaine C. Duke, Jefferson B. Sessions, Donald J. Trump, United States of America. Appeal of Order on Motion for Preliminary Injunction,, Order on Administrative Motion per Civil Local Rule 7−11,, Order on Motion for Leave to File,,,,,,,,,,,,,, Order on Motion to File Amicus Curiae Brief,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 82 , Order on Motion for Reconsideration,, Order on Motion to Dismiss,,,,, 146 (Appeal fee FEE WAIVED.) (Simpson, W.) (Filed on 9/18/2017) (Additional attachment(s) added on 9/20/2017: # 1 USCA NUMBER 17−16886) (aaaS, COURT STAFF). (Entered: 09/18/2017)
169 USCA Case Number 17−16886 for 168 Notice of Appeal,, filed by Elaine C. Duke, United States of America, Jefferson B. Sessions, Donald J. Trump. (aaaS, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)
170 NOTICE of Change In Counsel by Maureen P. Alger (Alger, Maureen) (Filed on 9/21/2017) (Entered: 09/21/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 36 of 41

09/27/2017 09/27/2017
09/28/2017 10/02/2017 10/02/2017 10/04/2017 10/04/2017 10/04/2017
10/04/2017 10/04/2017 10/04/2017
10/11/2017

171 STIPULATION WITH PROPOSED ORDER re 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed by Elaine C. Duke, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 9/27/2017) (Entered: 09/27/2017)
172 OPPOSITION/RESPONSE (re 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment ) filed byElaine C. Duke, Jefferson B. Sessions, Donald J. Trump, United States of America. (Attachments: # 1 Mem. from Atty Gen. for All Dept Grant−Making Components (May 22, 2017), # 2 Brief for Amici Curiae, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15−674), 2016 WL 891345)(Simpson, W.) (Filed on 9/27/2017) (Entered: 09/27/2017)
173 Order by Judge William H. Orrick granting 171 Stipulation to exceed page limits. (jmdS, COURT STAFF) (Filed on 9/28/2017) (Entered: 09/28/2017)
174 ADMINISTRATIVE MOTION Leave to File Amicus Brief re 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment filed by Political Science Scholars. Responses due by 10/6/2017. (Attachments: # 1 Exhibit (Proposed Amicus Brief), # 2 Proposed Order)(Shih, Daniel) (Filed on 10/2/2017) (Entered: 10/02/2017)
175 MOTION to File Amicus Curiae Brief filed by Immigration Reform Law Institute. Responses due by 10/16/2017. Replies due by 10/23/2017. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Axelrod, Julie) (Filed on 10/2/2017) (Entered: 10/02/2017)
176 MOTION to File Amicus Curiae Brief of National Center for Lesbian Rights, et al. filed by National Center for Lesbian Rights, National Center for Lesbian Rights. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Whelan, Amy) (Filed on 10/4/2017) Modified on 10/4/2017 to remove extraneous deadlines/hearing date (jmdS, COURT STAFF). (Entered: 10/04/2017)
177 REPLY (re 158 MOTION for Summary Judgment or in the Alternative, Partial Summary Judgment ) Plaintiff City and County of San Francisco's Reply to Opposition to Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Lee, Mollie) (Filed on 10/4/2017) (Entered: 10/04/2017)
178 Request for Judicial Notice re 177 Reply to Opposition/Response, Supplemental Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 177 ) (Lee, Mollie) (Filed on 10/4/2017) (Entered: 10/04/2017)
179 Declaration of Vicki Hennessy in Support of 177 Reply to Opposition/Response, Declaration of Sheriff Vicki Hennessy in Support of Plaintiff City and County of San Francisco's Reply to Opposition to Plaintiff's Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment filed byCity and County of San Francisco. (Related document(s) 177 ) (Lee, Mollie) (Filed on 10/4/2017) (Entered: 10/04/2017)
180 ADMINISTRATIVE MOTION For Leave to File Brief as Amici Curiae In Support of Plaintiffs' Motions for Summary Judgment filed by City and County of San Francisco. Responses due by 10/10/2017. (Attachments: # 1 Appendix A, # 2 Exhibit A, # 3 Proposed Order)(Taylor, Jennifer) (Filed on 10/4/2017) (Entered: 10/04/2017)
181 MOTION for Leave to File AMICI CURIAE BRIEF OF ADMINISTRATIVE LAW PROFESSORS IN SUPPORT OF PLAINTIFFS MOTIONS FOR SUMMARY JUDGMENT filed by Administrative Law Professors. (Attachments: # 1 AMICI CURIAE BRIEF OF ADMINISTRATIVE LAW PROFESSORS IN SUPPORT OF PLAINTIFFS MOTIONS FOR SUMMARY JUDGMENT, # 2 Proposed Order)(O'Leary, Ann) (Filed on 10/4/2017) (Entered: 10/04/2017)
182 STIPULATION WITH PROPOSED ORDER re 166 Order,,, Terminate Motions,,, Set Motion and Deadlines/Hearings,, filed by Elaine C. Duke, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 10/11/2017) (Entered: 10/11/2017)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 37 of 41

10/11/2017
10/12/2017 10/13/2017 10/20/2017
10/23/2017 10/23/2017 10/24/2017 10/24/2017 10/24/2017 10/30/2017
11/02/2017 11/02/2017

183 STIPULATION AND ORDER REGARDING ORAL ARGUMENT − Reset Hearing as to (158 in 3:17−cv−00485−WHO) MOTION for Summary Judgment and (151 in 3:17−cv−00574−WHO) MOTION for Summary Judgment. Motion Hearing set for 10/23/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. Signed by Judge William H. Orrick on 10/11/2017. (jmdS, COURT STAFF) (Filed on 10/11/2017) (Entered: 10/11/2017)
184 Second Supplemental Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's 158 Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment ; filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A)(Lee, Mollie) (Filed on 10/12/2017) Modified on 10/13/2017 (aaaS, COURT STAFF). (Entered: 10/12/2017)
185 NOTICE of Change of Address by Nathan M McClellan , Fred T Magaziner, Christopher S Burrichter (McClellan, Nathan) (Filed on 10/13/2017) (Entered: 10/13/2017)
186 THIRD SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF CITY AND COUNTY OF SAN FRANCISCO'S 158 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT; filed by City and County of San Francisco. (Attachments: # 1 Exhibit A)(Lee, Mollie) (Filed on 10/20/2017) Modified on 10/23/2017 (aaaS, COURT STAFF). (Entered: 10/20/2017)
187 TRANSCRIPT ORDER for proceedings held on 10/23/2017 before Judge William H. Orrick by City and County of San Francisco, for Court Reporter Katherine Wyatt. (Lee, Mollie) (Filed on 10/23/2017) (Entered: 10/23/2017)
191 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 10/23/2017 re Motions for Summary Judgment. Argument of counsel heard. Written order to follow. Total Time in Court: 49 minutes. Court Reporter: Pamela Batalo. (jmdS, COURT STAFF) (Date Filed: 10/23/2017) (Entered: 10/25/2017)
188 ERRONEOUSLY E−FILED: PLEASE SEE DOCKET NUMBER 189 FOR CORRECT ATTACHMENT TRANSCRIPT ORDER for proceedings held on 10/23/2017 before Judge William H. Orrick by County of Santa Clara, for Court Reporter Katherine Wyatt. (Harris, Cody) (Filed on 10/24/2017) Modified on 10/25/2017 (aaaS, COURT STAFF). (Entered: 10/24/2017)
189 TRANSCRIPT ORDER for proceedings held on 10/23/2017 before Judge William H. Orrick by County of Santa Clara, for Court Reporter Pam Batalo. (Harris, Cody) (Filed on 10/24/2017) (Entered: 10/24/2017)
190 TRANSCRIPT ORDER for proceedings held on 10/23/2017 before Judge William H. Orrick by City and County of San Francisco, for Court Reporter Pam Batalo. (Lee, Mollie) (Filed on 10/24/2017) (Entered: 10/24/2017)
192 Transcript of Proceedings held on 10/23/17, before Judge Orrick. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (189 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 11/20/2017. Redacted Transcript Deadline set for 11/30/2017. Release of Transcript Restriction set for 1/29/2018. (Batalo, Pam) (Filed on 10/30/2017) (Entered: 10/30/2017)
193 ADMINISTRATIVE MOTION To Consider Post−Hearing Developments Plaintiff City and County of San Francisco's Administrative Motion to Consider Post−Hearing Developments filed by City and County of San Francisco. Responses due by 11/6/2017. (Lee, Mollie) (Filed on 11/2/2017) (Entered: 11/02/2017)
194 Declaration of Mollie M. Lee in Support of 193 ADMINISTRATIVE MOTION To Consider Post−Hearing Developments Plaintiff City and County of San Francisco's Administrative Motion to Consider Post−Hearing Developments filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 38 of 41

11/02/2017 11/06/2017
11/16/2017 11/16/2017
11/16/2017 11/20/2017 11/29/2017 11/30/2017 12/07/2017 12/07/2017 12/14/2017 02/28/2018
02/28/2018 03/09/2018

document(s) 193 ) (Lee, Mollie) (Filed on 11/2/2017) (Entered: 11/02/2017)
195 Proposed Order re 193 ADMINISTRATIVE MOTION To Consider Post−Hearing Developments Plaintiff City and County of San Francisco's Administrative Motion to Consider Post−Hearing Developments by City and County of San Francisco. (Lee, Mollie) (Filed on 11/2/2017) (Entered: 11/02/2017)
196 OPPOSITION/RESPONSE (re 193 ADMINISTRATIVE MOTION To Consider Post−Hearing Developments Plaintiff City and County of San Francisco's Administrative Motion to Consider Post−Hearing Developments ) filed byElaine C. Duke, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 11/6/2017) (Entered: 11/06/2017)
197 Request for Judicial Notice Fifth Supplemental Request for Judicial Notice in Support of San Francisco's Motion for Summary Judgment; Administrative Motion to Consider Post−Hearing Developments filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A)(Lee, Mollie) (Filed on 11/16/2017) (Entered: 11/16/2017)
198 Declaration of Mollie M. Lee in Support of 197 Request for Judicial Notice, Declaration of Mollie M. Lee in Support of City and County of San Francisco's Fifth Supplemental Request for Judicial Notice and Administrative Motion to Consider Post−Hearing Developments filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A)(Related document(s) 197 ) (Lee, Mollie) (Filed on 11/16/2017) (Entered: 11/16/2017)
199 Proposed Order re 197 Request for Judicial Notice, [Proposed] Order Granting Fifth Supplemental Request for Judicial Notice and Administrative Motion to Consider Post−Hearing Developments by City and County of San Francisco. (Lee, Mollie) (Filed on 11/16/2017) (Entered: 11/16/2017)
200 Order by Judge William H. Orrick Granting 158 Motion for Summary Judgment. The defendants are permanently enjoined from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. (jmdS, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
201 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order For Voluntary Dismissal of Count One of San Francisco's Second Amended Complaint Without Prejudice filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 11/29/2017) (Entered: 11/29/2017)
202 Order for Voluntary Dismissal of Count One of San Francisco's Second Amended Complaint without Prejudice by Judge William H. Orrick granting 201 Stipulation. (jmdS, COURT STAFF) (Filed on 11/30/2017) (Entered: 11/30/2017)
203 ERRATA TO ORDER GRANTING MOTION FOR SUMMARY JUDGMENT re 200 Order on Motion for Summary Judgment. Signed by Judge William H. Orrick on 12/07/2017. (jmdS, COURT STAFF) (Filed on 12/7/2017) (Entered: 12/07/2017)
204 JUDGMENT. Signed by Judge William H. Orrick on 12/7/2017. (jmdS, COURT STAFF) (Filed on 12/7/2017) (Entered: 12/07/2017)
205 NOTICE OF APPEAL to the 9th Circuit Court of Appeals ; filed by Jefferson B. Sessions, Donald J. Trump, United States of America, Kirstjen Nielsen. Appeal of 200 Order & Judgment 204 ; (Appeal fee FEE WAIVED.) (Simpson, W.) (Filed on 12/14/2017) Modified on 12/15/2017 (aaaS, COURT STAFF). (Entered: 12/14/2017)
206 MANDATE of USCA The judgment of this Court, entered January 4,2018, takes effect this date. This constitutes the formal mandate of this Court. FOR THE COURT; as to 168 Notice of Appeal,, filed by Elaine C. Duke, United States of America, Jefferson B. Sessions, Donald J. Trump (aaaS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)
207 CLERK'S Letter Spreading Mandate to Counsel Re 206 USCA Mandate (aaaS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)
208 Mail sent to Franklin H. Wright returned as undeliverable re 207 Clerk's Letter Spreading Mandate, 206 USCA Mandate. (aaaS, COURT STAFF) (Filed on 3/9/2018)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 39 of 41

08/07/2018 08/13/2018 08/27/2018 08/29/2018 08/29/2018
08/29/2018 08/29/2018 08/29/2018
08/29/2018 09/10/2018 09/26/2018
11/08/2018 11/30/2018

(Entered: 03/12/2018)
209 USCA Opinion; as to 168 Notice of Appeal,, filed by Elaine C. Duke, United States of America, Jefferson B. Sessions, Donald J. Trump (aaaS, COURT STAFF) (Filed on 8/7/2018) (Entered: 08/07/2018)
210 NOTICE by City and County of San Francisco OF DISASSOCIATION OF CHRISTINE VAN AKEN AS COUNSEL FOR CITY AND COUNTY OF SAN FRANCISCO (Steeley, Tara) (Filed on 8/13/2018) (Entered: 08/13/2018)
211 NOTICE by City and County of San Francisco Notice of Disassociation of Counsel (Eisenberg, Sara) (Filed on 8/27/2018) (Entered: 08/27/2018)
212 MOTION to Relate Case Unopposed Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 8/29/2018) (Entered: 08/29/2018)
213 Declaration of Sara J. Eisenberg in Support of 212 MOTION to Relate Case Unopposed Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) Declaration of Sara J. Eisenberg In Support of Unopposed Administrative Motion to Consider Whether Cases Should Be Related filed byCity and County of San Francisco. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 212 ) (Eisenberg, Sara) (Filed on 8/29/2018) (Entered: 08/29/2018)
214 Proposed Order re 212 MOTION to Relate Case Unopposed Administrative Motion to Consider Whether Cases Should Be Related Pursuant to N.D. Cal. Civil L.R. 3−12(B) [Proposed] Order Granting Unopposed Administrative Motion to Consider Whether Cases Should Be Related by City and County of San Francisco. (Eisenberg, Sara) (Filed on 8/29/2018) (Entered: 08/29/2018)
215 NOTICE of Appearance by Lee Isaac Sherman (Sherman, Lee) (Filed on 8/29/2018) (Entered: 08/29/2018)
216 UNOPPOSED ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; filed by State of California. Responses due by 9/4/2018. (Attachments: # 1 Proposed Order, # 2 Declaration)(Sherman, Lee) (Filed on 8/29/2018) Modified on 8/30/2018 (aaaS, COURT STAFF). Modified on 8/30/2018 (aaaS, COURT STAFF). Modified on 8/30/2018 (aaaS, COURT STAFF). (Entered: 08/29/2018)
ERRONEOUS ENTRY PLEASE DISREGARD. (Entered: 08/30/2018)
217 RELATED CASE ORDER by Judge William H. Orrick granting (216) Administrative Motion in case 3:17−cv−00485−WHO (Associated Cases: 3:17−cv−00485−WHO, 3:17−cv−04642−WHO, 3:17−cv−04701−WHO). Case Nos. 3:18cv5169−KAW and 3:18cv5146−JSC are found to be related. (jmdS, COURT STAFF) (Filed on 9/10/2018) (Entered: 09/10/2018)
218 MANDATE of USCA The judgment of this Court, entered August 01,2018, takes effect this date. This constitutes the formal mandate of this Court. FOR THE COURT; as to 205 Notice of Appeal, filed by Kirstjen Nielsen, United States of America, Jefferson B. Sessions, Donald J. Trump, 168 Notice of Appeal, filed by Elaine C. Duke, United States of America, Jefferson B. Sessions, Donald J. Trump Re USCA Number 17−17478 (aaaS, COURT STAFF) (Filed on 9/26/2018) (Entered: 09/26/2018)
219 ORDER SETTING CASE MANAGEMENT CONFERENCE − Case Management Statement due by 12/4/2018. Case Management Conference set for 12/11/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 11/8/2018. (jmdS, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/08/2018)
220 STIPULATION WITH PROPOSED ORDER Stipulation and Proposed Order Regarding Scheduling of Case Management Conference filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 11/30/2018) (Entered: 11/30/2018)

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 40 of 41

12/03/2018 01/09/2019 03/19/2019 03/21/2019
04/11/2019 04/16/2019 04/25/2019 05/13/2019 05/14/2019 05/17/2019
06/04/2019 07/30/2019 08/02/2019

221 ORDER REGARDING SCHEDULING OF CASE MANAGEMENT CONFERENCE by Judge William H. Orrick granting 220 Stipulation. Case Management Statement due by 1/15/2019. Further Case Management Conference reset for 1/22/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. (jmdS, COURT STAFF) (Filed on 12/3/2018) (Entered: 12/03/2018)
222 ORDER continuing Case Management Conference to 3/26/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 3/19/2019. Signed by Judge William H. Orrick on 1/9/2019. (jmdS, COURT STAFF) (Filed on 1/9/2019) (Entered: 01/09/2019)
223 STIPULATION WITH PROPOSED ORDER Stipulation and Proposed Order Regarding Scheduling of Case Management Conference filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 3/19/2019) (Entered: 03/19/2019)
224 STIPULATION AND ORDER REGARDING SCHEDULING OF CASE MANAGEMENT CONFERENCE Motions terminated: (194 in 3:17−cv−00574−WHO) STIPULATION and (223 in 3:17−cv−00485−WHO) STIPULATION. Case Management Statement due by 4/16/2019. Further Case Management Conference set for 4/23/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 03/21/2019. (jmdS, COURT STAFF) (Filed on 3/21/2019) (Entered: 03/21/2019)
225 STIPULATION WITH PROPOSED ORDER re 224 Stipulation and Order,, Set Deadlines/Hearings,, Terminate Motions,, Terminate Deadlines and Hearings, Regarding Scheduling of Case Management Conference filed by Donald J. Trump, United States of America, William P. Barr, Kevin K. McAleenan. (Simpson, W.) (Filed on 4/11/2019) (Entered: 04/11/2019)
226 Order by Judge William H. Orrick granting 225 Stipulation. Case Management Conference continued to 5/21/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 5/14/2019. (jmdS, COURT STAFF) (Filed on 4/16/2019) (Entered: 04/16/2019)
227 NOTICE of Substitution of Counsel by Daniel D. Mauler and withdrawal of W. Scott Simpson as counsel for Defendants (Mauler, Daniel) (Filed on 4/25/2019) (Entered: 04/25/2019)
228 NOTICE by City and County of San Francisco Notice of Disassociation of Counsel (Eisenberg, Sara) (Filed on 5/13/2019) (Entered: 05/13/2019)
229 CASE MANAGEMENT STATEMENT (Joint Statement, Stipulation, and Proposed Order, on behalf of Plaintiffs and Defendants) filed by William P. Barr, John F Kelly, Kevin K. McAleenan, Kirstjen Nielsen, Donald J. Trump, United States of America. (Mauler, Daniel) (Filed on 5/14/2019) (Entered: 05/14/2019)
230 STIPULATION AND ORDER REGARDING SCHEDULING OF CASE MANAGEMENT CONFERENCE. Further Case Management Conference continued to 8/6/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 7/30/2019. Signed by Judge William H. Orrick on 05/17/2019. (jmdS, COURT STAFF) (Filed on 5/17/2019) (Entered: 05/17/2019)
231 NOTICE by Ampush Media, Inc., Appboy Inc., Azavea, Checkr, Inc., Chegg Inc., Eventbrite, General Assembly, IDEO, Knotel, Managed by Q Inc., Mapbox, Marin Software, Minted LLC, SugarCRM Inc., Work & Co Notice of Disassociation of Counsel (Fritz, Kathryn) (Filed on 6/4/2019) (Entered: 06/04/2019)
232 STIPULATION and Proposed Order Regarding Scheduling of Case Management Conference filed by William P. Barr, John F Kelly, Kevin K. McAleenan, Kirstjen Nielsen, Donald J. Trump, United States of America. (Mauler, Daniel) (Filed on 7/30/2019) Modified on 7/31/2019 (gbaS, COURT STAFF). (Entered: 07/30/2019)
233 ORDER re (232 in 3:17−cv−00485−WHO) Continuing Case Management Conference and related deadlines. Case Management Statement or proposed judgment due by 8/13/2019. Case Management Conference continued to 8/20/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge Wi on 08/02/2019. (jmdS, COURT STAFF) (Filed on 8/2/2019) (Entered:

Case: 3:17-cv-485 As of: 08/12/2020 09:59 AM PDT 41 of 41

08/13/2019 08/15/2019 10/02/2019 10/08/2019

08/02/2019)
234 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Final Judgment and Order filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 8/13/2019) (Entered: 08/13/2019)
235 Final Judgment and Order by Judge William H. Orrick granting 234 Stipulation. (jmdS, COURT STAFF) (Filed on 8/15/2019) (Entered: 08/15/2019)
236 MOTION to Relate Case filed by State of California. (Attachments: # 1 Declaration of Lee I. Sherman and Exhibits 1−7, # 2 Proposed Order)(Sherman, Lee) (Filed on 10/2/2019) (Entered: 10/02/2019)
237 Order by Judge William H. Orrick granting 236 Motion to Relate Case No. 3:19cv6189−LB. (jmdS, COURT STAFF) (Filed on 10/8/2019) (Entered: 10/08/2019)