5 Things to Know to Certify Compliance with Section 1373

Some cities and counties walk a fine line between residents urging local ordinances or policies that “protect” undocumented immigrants, and the Federal funding they want and need from the U.S. Department of Justice (DOJ) for local law enforcement, such as the current open Community Oriented Policing Services (COPS) funding opportunities. Find out what municipalities need to know to certify compliance with Section 1373.

Compliance Rules Have Not Changed

After President Donald Trump issued the January 2017 Executive Order “Enhancing Public Safety in the Interior of the United States,” communities feared not complying with voluntary Immigration and Customs Enforcement detainers would result in a loss of general federal funding. But as time went on, it became clear that the Federal funding at issue are certain DOJ and homeland security grants.

Recently, U.S. Attorney General Jeff Sessions clarified compliance requirements, which long-time policy analysts noted means the Trump Administration’s policies on restricting Federal funding based on compliance with immigration information statutes are the same as during the Obama Administration.

What If Your Community Has a Sanctuary City Policy?

An attorney that spoke with Gov1 on background advised that even if compliance with Section 1373 is a written condition of the individual COPS grants, cities with ‘Sanctuary City’ ordinances or ‘Safe City’ policies of the ilk in the January publication Sanctuary, Safety and Community: Tools for Welcoming and Protecting Immigrants Through Local Democracy can still be in compliance with the Federal statute based upon equal protection and anti-discrimination case law referenced in the report, which are also summarized in a Demos’ fact sheet.

The city of New Orleans recently announced its compliance with Section 1373 after it along with nine other government entities were sent formal notices by the DOJ requiring documentation by June 30th.

What do COPS Grants Require?

For all the open 2017 COPS grants due in June or July 2017, such as the COPS Hiring Program, COPS grants for the federal Anti-Heroin Task Force Program and Community Policing Development (CPD) Program, the individual grants specify:

“To obligate or expend FY 2017 award funding, all state or local government entities must comply with a new grant condition requiring compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining or exchanging information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a state or local government entity or official. This condition applies throughout the grant award period. The full text of this grant condition may be found in the appendices.”

Immigration enforcement guidance from the New York Attorney General Eric Schneiderman summarizes that,

Section 1373 thus does not impose an affirmative mandate to share information — nor could it, for the reasons discussed below. Instead, this law simply provides that localities may not forbid or restrict their employees from sharing information regarding an individual’s ‘citizenship or immigration status.’”

Here’s Five Thing Cities and Counties Need to Know about Certifying Compliance with Section 1373 for COPS grants:

1. Certification with Section 1373 must be completed by an official city or county attorney.
2. The applying municipality must have its own account in the COPS portal for the city or county attorney to upload the appropriate form (here is the CPD Program certification form, for example) to apply an electronic signature.
3. For COPS grants where municipalities partner with states, the state applying is the certifying agency.
4. For the CPD program, any for-profit partners must include certification by all state or local government sub-recipients that would receive FY 2017 sub-award funds. Municipalities working with private sector partners on community policing programs applying for CPD grants must be listed and their official attorney-signed Section 1373 compliance forms uploaded to the portal.
5. Generally speaking, the Constitution protects local government against coercion by the Federal government. More information about the 10th Amendment is available on the Cornell University Law School website.