On January 10th, LCW presented a webinar for public educational institutions in response to questions and concerns from schools and colleges about the impacts of anticipated changes to federal law and policy on undocumented students. We provide this update regarding the first signed Executive Order that addresses issues pertaining to undocumented persons. We will continue to send out similar alerts as new developments unfold in this quickly changing landscape.
On January 25, 2017, President Trump issued an Executive Order titled “Enhancing Public Safety in the Interior of the United States.” Among other things, the Order re-prioritizes immigration enforcement and authorizes the hiring of new ICE officers. In addition, the Order grants the Attorney General and the Secretary of Homeland Security (“Secretary”) the authority to ensure that sanctuary jurisdictions (as defined in the Order) are not eligible to receive federal grants, to the extent consistent with law.
It remains unclear at this time whether this will directly impact public educational institutions, including K-12 and community college districts that provide assistance or support to undocumented students. “Sanctuary jurisdiction” is defined in the Order as a jurisdiction that willfully refuses to comply with 8 U.S.C. § 1373 (“Section 1373”). Section 1373 provides that federal, state, and local government entities may not prohibit or restrict any government entity or official from sending (or receiving) information regarding the citizenship or immigration status of any individual to the Immigration and Naturalization Service. The Order also authorizes the Secretary to designate a jurisdiction as a “sanctuary jurisdiction.” We understand the function of the designation as establishing a basis to impose sanctions on such jurisdictions. However, as noted in the LCW webinar, there is no legal definition of “sanctuary,” and it is used by public institutions to describe a wide range of policies designed to support undocumented members of their communities; many of these activities do not constitute violations of Section 1373, as currently written.
The Order also gives the Attorney General broad authority to take appropriate enforcement action against any entity that violates Section 1373, or which has a statute, policy, or practice that prevents or hinders the enforcement of federal law—a much broader proposition. As also discussed in the LCW webinar, under current law, schools and colleges cannot be required to use their resources to enforce immigration law. Additionally, under current law, they may require immigration officials to satisfy lawful procedural requirements—such as obtaining subpoenas and search warrants. Finally, under current law, they may enact policies to limit asking about or retaining records regarding immigration status. It remains to be seen whether such activities will be viewed as “hindering” enforcement of federal law.
The Order also commands the Secretary to engage with state governors and local officials for the purpose of entering into agreements empowering local law enforcement agencies to act as immigration officers pursuant to section 287(g) of the Immigration and Nationality Act (“INA”). In the LCW webinar, we flagged that local law enforcement agencies may enter into cooperative agreements with immigration enforcement officials under the INA. Thus, we advised that community colleges review the mutual aid agreements they are required to develop with local law enforcement agencies because those agencies may be authorized to act as immigration officials. This Order signals an intent to increase, to the fullest extent possible under the law, the ability of local law enforcement 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.” It remains to be seen whether modifying district mutual aid agreements to limit local police from performing these functions on college campuses will be seen as “hindering” the enforcement of federal law.
It also remains to be seen what types of federal grants will be pulled and what type of discretion the Secretary will use to designate sanctuary jurisdictions. What is clear is that the Order signals that the executive branch is attempting to exercise authority to punish what it defines as “sanctuary jurisdictions,” and entities that “prevent or hinder” federal enforcement of immigration law.
A draft Executive Order addressing DACA was also leaked yesterday, but there is no indication that it has been finalized or signed. We will continue to keep you updated about both Orders and other developments as they become final.
For those who were not able to participate in the LCW webinar, you can register to view a recording of that presentation HERE.