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Attorney General Jeff Sessions said "sanctuary cities" that won’t cooperate immigration authorities are acting unlawfully and stand to lose funds if they don’t comply.
The Justice Department’s inspector general has determined that policies in such jurisdictions are illegal, Sessions said March 27.
"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," Sessions, who began leading the department this year under Trump’s administration, said during a White House press briefing.
Is that accurate? Sessions is exaggerating what the inspector general actually said.
Inspector general’s memo
There is not a legal, federal definition for "sanctuary cities," but they’re generally regarded as local governments that limit their cooperation with immigration officials. Usually they do that by refusing to hold people in local jails (beyond the time they would have been released) when asked to do so by U.S. Customs and Immigration Enforcement.
That’s called a refusal to honor a detainer request. ICE detainers ask local law enforcement agencies to alert the federal agency of upcoming releases of individuals and to detain them for up to 48 hours so that immigration authorities can pick them up.
Jurisdictions with "sanctuary" policies argue that they have good reasons not to co-operate with immigration officials. They say that their policies help build trust between local police and their community, and that their cities are not crime magnets.
Amid Trump’s call to cut funding for sanctuary cities, some cities such as Boston and New York remain committed to policies that shield immigrants. Others, fearing a loss of money, have walked back their policies. A day after Trump signed an executive order to advance his promise, Miami-Dade Mayor Carlos Gimenez directed county officials to comply with detainer requests, though he had previously claimed his jurisdiction was not a sanctuary.
Sessions was basing his claim that the cities were violating the law on an inspector general’s memo. In May 2016, Michael E. Horowitz, the Justice Department inspector general wrote a memo to the assistant attorney general for the Office of Justice Programs in response to queries on whether jurisdictions receiving department grants were violating the law, specifically 8 U.S. Code Section 1373.
Section 1373 says federal, state or local government entities or officials may not prohibit or restrict the exchange of information with federal immigration officers regarding the citizenship or immigration status of any individual.
Of the more than 140 jurisdictions in question, the inspector general’s office took a sample of 10 jurisdictions, which included the state of California, Chicago, and Miami-Dade County in Florida. It reviewed their policies regarding their interaction and communication with ICE and asked ICE officials for feedback.
All 10 jurisdictions had policies limiting in some way their cooperation with ICE detainer requests, the May 2016 memo said.
But local jails are not required by law to respond to detainers requests, and the handling of detainers is not addressed in Section 1373.
Yet the May 2016 memo raised concerns about the wording in some local ordinances and how officials may be interpreting and applying them.
For instance, a Chicago ordinance said, "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."
The inspector general’s office raised concerns on whether Chicago city employees were aware of their legal authority to act against the local ordinance and respond to ICE detainer requests.
Policies in other jurisdictions besides Chicago "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 Section 1373."
A spokesman for Sessions highlighted the previous line as backup for the attorney general’s claim.
But that line has a footnote, which says:
"The ICE officials we spoke with noted that no one at (Department of Homeland Security) 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 also unaware of any legal action taken by the federal government against a state or local jurisdiction to require cooperation."
Experts evaluate Sessions’ interpretation
Several immigration law scholars we reached out to disagreed with Sessions’ read of the memo.
We spoke with five immigration law scholars; four of them disagreed with Sessions' interpretation of the memo.
The closest support for Sessions' claim came from Gabriel (Jack) Chin, a professor and director of clinical legal education at the University of California-Davis law school. The concerns raised by the inspector general give Sessions’ claim some credence, he said.
"While there is a little hedge because no jurisdiction has been accused of violating 1373, or found to have done so, my reading is that some jurisdictions are in apparent violation of the law," Chin said.
The other were more skeptical.
"Sessions went beyond what the report said. The report expresses concern that some cities’ policies might violate section 1373, but in the end the report stops short of finding any violations," said Hiroshi Motomura, a law professor at University of California, Los Angeles, School of Law. "In fact, the language of the report seems carefully chosen to limit itself to raising concerns without finding violations."
The "may" qualification in the report "is far from a definitive conclusion that these policies are against the law," said Ilya Somin, a law professor at George Mason University who has opined in the Washington Post that Trump’s executive order related to so-called sanctuary cities is unconstitutional.
"The inspector general had no real information, but merely a vague idea that it was possible that in some jurisdictions policies may be causing a violation of Section 1373," said Margo Schlanger, a law professor at the University of Michigan who used to run the civil rights office at Department of Homeland Security during the Obama administration.
The argument in the inspector general's memo seems to be that the policies could violate Section 1373 as applied, noted Huyen Pham, a law professor at Texas A&M University School of Law.
"But the inspector general recognizes that this argument would require a lot more systematic gathering of empirical information than what it did in its investigation," Pham said. "Thus the carefully couched 'may be' language."
Sessions said, "Just last May, the Department of Justice inspector general found that these (‘sanctuary’) policies also violate federal law."
A memo issued by the inspector general raised questions about how local officials may be interpreting and applying ordinances that limit their cooperation with federal immigration authorities.
But the memo also explicitly said a formal legal determination on whether certain state and local laws or policies violate Section 1373 had not been made by immigration officials and that his office was unaware of any Justice Department decision in that regard.
Sessions’ statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.
Justice Department, Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions, March 27, 2017
Email exchange, Justice Department press office, March 27, 2017
Office of the Inspector General, Memo on jurisdictions and Section 1373 compliance, May 31, 2016
PolitiFact, Trump-O-Meter, Cancel all funding of sanctuary cities
Email interview, Hiroshi Motomura, a law professor at University of California, Los Angeles, School of Law, March 28, 2017
Email interview, Ilya Somin, a law professor at George Mason University, March 28, 2017
Email interview, Gabriel (Jack) Chin, a professor and director of clinical legal education at the University of California-Davis law school, March 28, 2017
Phone interview, Margo Schlanger, a law professor at the University of Michigan, March 28, 2017
Email interview, Huyen Pham, a law professor at Texas A&M University School of Law, March 29, 2017
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