Justice Department Sends Letters to 29 Jurisdictions Regarding Their Compliance with 8 U.S.C. 1373

The Department of Justice today sent the attached letters to 29 jurisdictions that may have laws, policies, or practices that violate 8 U.S.C. 1373, a federal statute that promotes information sharing related to immigration enforcement.

 

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

 

The following jurisdictions have preliminarily been found to have laws, policies, or practices that may violate 8 U.S.C. 1373:

 

  • Albany, New York;
  • Berkeley, California;
  • Bernalillo County, New Mexico;
  • Burlington, Vermont;
  • Contra Costa County, California;
  • City and County of Denver, Colorado;
  • Fremont, California;
  • Jackson, Mississippi;
  • King County, Washington;
  • Lawrence, Massachusetts;
  • Los Angeles, California;
  • Louisville Metro, Kentucky;
  • Middlesex, New Jersey;
  • Monterey County, California;
  • Multnomah County, Oregon;
  • Newark, New Jersey;
  • Riverside County, California;
  • Sacramento County, California;
  • City and County of San Francisco, California;
  • Santa Ana, California;
  • Santa Clara County, California;
  • Seattle, Washington;
  • Sonoma County, California;
  • Washington, District of Columbia;
  • Watsonville, California;
  • West Palm Beach, Florida;
  • State of Illinois;
  • State of Oregon; and
  • State of Vermont.

 

The letters remind the recipient jurisdictions that, as a condition for receiving certain FY2016 funding from the Department of Justice, each of these jurisdictions agreed to comply with Section 1373.

 

The Department of Justice periodically reviews the laws, policies, or practices of jurisdictions that previously certified compliance with Section 1373 as a condition of their FY2016 Byrne JAG awards.

 

In addition to raising concerns about these jurisdictions’ Section 1373 compliance during FY2016, the Justice Department asked jurisdictions to determine that they will comply with Section 1373 should they receive an FY2017 Byrne JAG award.

 

Jurisdictions that were found to have possible violations of 8 U.S.C. 1373 will have until December 8, 2017 to demonstrate that the interpretation and application of their laws, policies, or practices comply with the statute.

Letter:

November 15,2017

Thomas Anderson
Commissioner
Vermont Department of Public Safety
45 State Drive
Waterbury, VT 05671
Dear Commissioner Anderson,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.c. § 1373.
Section 1373 compliance is an ongoing requirement that the Department of Justice monitors. The
Department is concerned that the following Vermont laws, policies, or practices may violate section
1373:
• Vermont Model Fair and Impartial Policing Policy. I Part 8.1.3 requires officers to
“communicate” that they will not “report immigrants or the immigration status of
victims/witnesses to the Department of Homeland Security.” The Department is concerned
that this policy appears to restrict the sending of information regarding immigration status, in
violation of section 1373(a). It is not the Department of Justice’s nor the Department of
Homeland Security’s policy or practice to request information from state and local
jurisdictions regarding the imm.igration status of victims or witnesses. There are, however,
instances where requesting this information could be appropriate, such as where a person is
both a perpetrator and a victim/witness.
I While this is only a model policy, the State of Vermont’s official website states the following with respect to this model
policy: “Agencies and constables have until July 1,2016, to either adopt the model policy in its entirety or ensure that its
current policy contains the essential elements as identified by the Council. I should note that if an agency makes no
movement at all by July I, it will have been deemed to have adopted, and be bound by, the Council’s Model Policy.”
http://vcjtc.vermont.gov/contentlmodel-fair-and-impartial-policing-policy; see also 20 V.S.A. § 2366(a) (“[o]n or before
July 1,2016, every State, local, county, and municipal law enforcement agency and every constable who exercises law
enforcement authority pursuant to 24 V.S.A. § 1936a and who is trained in compliance with section 2358 of this title
shall adopt a fair and impartial policing policy that includes, at a minimum, the elements of the Criminal Justice Training
Council model policy”). The provisions relied on in this letter are identified as “essential elements” of the policy.
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• Vermont Model Fair and Impartial Policing Policy. Part 8.3.2 provides that officers “shall
utilize federal databases in attempts to establish an individual’s indentity [sic] only when all
other attempts to identify the person have failed.” It also provides that “contact with federal
authorities made to determine an individual’s identity is restricted to the purpose of
determining his or her identity.” The Department is concerned that this policy appears to
restrict the sending or requesting of information regarding immigration status, in violation of
section 1373(a) and (b). The Department further notes that the use of federal databases to
obtain information about arrestees is a primary method for providing information to
Immigration and Customs Enforcement.2
By December 8,2017, please submit a response to this letter that addresses whether Vermont
has laws, policies, or practices that violate section 1373, including those discussed above. In
addition to your compliance in FY 2016, please address whether you would comply with section
1373 throughout the award period, should you receive an FY 2017 Byrne JAG grant award. To the
extent Vermont laws or policies contain so called “savings clauses,” please explain in your
submission the way these savings clauses are interpreted and applied, and whether these
interpretations are communicated to Vermont officers or employees.
The Department has not made a final determination regarding Vermont’s compliance with
section 1373. This letter does not constitute final agency action and nothing in this letter creates any
right or benefit enforceable at law against the United States.
Sincerely,

Alan Hanson
Acting Assistant Attorney General

November 15,2017
Miro Weinberger
Mayor of Burlington
City Hail, Room 34
Burlington, VT 05401
Dear Mayor Weinberger,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.C. § 1373.
Section 1373 compliance is an ongoing requirement that the Department of Justice monitors. The
Department is concerned that the following Burlington laws, policies, or practices may violate
section 1373:
• Burlington Police Department’s Fair and Impartial Policing Policy. Part V.C states that
“local police officers … will not … comply with requests for notification [of release],”
subject to certain exceptions. The Department is concerned that this appears to restrict the
sending of information regarding immigration status, in violation of section 1373(a).
• Burlington Police Department’s Fair and Impartial Policing Policy. Part VIlLB states that
“[o]fficers may not inquire about a person’s civil immigration status unless [this status] is
necessary to the ongoing investigation of a criminal offense.” The Department is concerned
that this appears to restrict the requesting of information regarding immigration status, in
violation of section 1373(b).
• Burlington Police Department’s Fair and Impartial Policing Policy. Part VIILC states that
“[o]fficers may utilize general federal databases in attempts to establish an individual’s
identity, but should not involve federal immigration officials in such an inquiry unless
necessary.” The Department is concerned that this appears to restrict the sending or
requesting of information regarding immigration status, in violation of section 1373(a) and
(b).
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By December 8, 2017, please submit a response to this letter that addresses whether
Burlington has laws, policies, or practices that violate section 1373, including those discussed above.
In addition to your compliance in FY 2016, please address whether you would comply with section
1373 throughout the award period, should you receive an FY 2017 Byrne JAG grant award. To the
extent Burlington laws or policies contain so called “savings clauses,” please explain in your
submission the way these savings clauses are interpreted and applied, and whether these
interpretations are communicated to Burlington of1icers or employees.
The Department has not made a final determination regarding Burlington’s compliance with
section 1373. This letter does not constitute tinal agency action and nothing in this letter creates any
right or benefit enforceable at law against the United States.
Sincerely,

Alan Hanson
Acting Assistant Attorney General