United States of America v. State of California et al

Filing 112

AMICI CURIAE BRIEF by City and County of San Francisco. Attorney Lee, Mollie Mindes added. (Lee, Mollie) Modified on 5/21/2018 (Benson, A.).

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DENNIS J. HERRERA, State Bar #139669
City Attorney
RONALD P. FLYNN, State Bar #184186
Chief Deputy City Attorney
*MOLLIE M. LEE, State Bar #251404
SARA J. EISENBERG, State Bar #269303
Deputy City Attorneys
1390 Market Street, Sixth Floor
San Francisco, California 94102
Telephone:
[phone]
Facsimile:
[phone]
E-Mail:
[e-mail]

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Attorneys for Amicus Curiae
CITY AND COUNTY OF SAN FRANCISCO

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*Counsel for Service

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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THE UNITED STATES OF AMERICA,

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Plaintiff,

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vs.

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THE STATE OF CALIFORNIA; EDMUND
GERALD BROWN JR., Governor of
California, in his official capacity; and
XAVIER BECERRA, Attorney General of
California, in his official capacity,
Defendants.

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Case No. 2:18-cv-00490-JAM-KJN
BRIEF OF AMICUS CURIAE CITY AND
COUNTY OF SAN FRANCISCO IN SUPPORT
OF DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION
Hearing Date:
Time:
Place:
Judge:

June 20, 2018
10:00 a.m.
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The Honorable John A. Mendez

Action Filed:
Trial Date:

March 6, 2018
None Set

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES .......................................................................................................... ii 
INTEREST OF AMICUS CURIAE ..................................................................................................1 
INTRODUCTION AND SUMMARY OF ARGUMENT ..............................................................2 
ARGUMENT ...................................................................................................................................3 
I. 

Section 1373 Imposes Narrow Obligations About Citizenship
And Immigration Status Information. ......................................................................3 

II. 

The United States Has Advocated An Extraordinarily Broad
Interpretation Of Section 1373 That Is Unmoored From Its Text. ..........................4 

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A. 

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This Interpretation Would Extend To Any Information That
Could Help Federal Immigration Authorities. .............................................4 

B. 

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This Interpretation Would Sweep In Vast Swaths Of
Personal Information. ...................................................................................6 

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The United States’ Interpretation Ignores Established Principles Of
Statutory Construction, Which Confirm That Section 1373 Must Be
Read More Narrowly. ..............................................................................................8 

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A. 

The Plain Text Of Section 1373 Refers Only To Citizenship And
Immigration Status Information ...................................................................8 

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B. 

“Regarding” Does Not Show A Clear Intent To Cover Other
Categories Of Information, And Instead Reflects State And Local
Governments’ Limited Role In Immigration Enforcement. ........................9 

C. 

General Statements Of Purpose In The Legislative History
Cannot Override The Text Enacted By Congress. .....................................11 

D. 

If Congress Had Intended Section 1373 To Apply More
Broadly, It Would Have Used Broader Language. ....................................13 

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III. 

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CONCLUSION ..............................................................................................................................14 

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TABLE OF AUTHORITIES

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Federal Cases

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Arlington Central School District Board of Education v. Murphy
548 U.S. 291 (2006) ...................................................................................................................12
Atascadero State Hosp. v. Scanlon
473 U.S. 234 (1985) ...................................................................................................................10
Bond v. United States
134 S. Ct. 2077 (2014) ...............................................................................................................11
Campbell v. Allied Van Lines Inc.
410 F.3d 618 (9th Cir. 2005) .......................................................................................................8
City of New York v. United States
179 F.3d 29 (2d Cir. 1999) ........................................................................................................13
Gregory v. Ashcroft
501 U.S. 452 (1991) ...................................................................................................................10
Lawson v. FMR LLC
134 S. Ct. 1158 (2014) .................................................................................................................8
Medtronic, Inc. v. Lohr
518 U.S. 470 (1996) ...................................................................................................................11
Moskal v. United States
498 U.S. 103 (1990) .....................................................................................................................8
N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.
514 U.S. 645 (1995) ...................................................................................................................10
Rice v. Santa Fe Elevator Corp.
331 U.S. 218 (1947) ...................................................................................................................10
Roach v. Mail Handlers Benefits Plan
298 F.3d 847 (9th Cir. 2002) ...........................................................................................9, 10, 11
Steinle v. City and Cty. of San Francisco
230 F. Supp. 3d 994 (N.D. Cal. 2017) .........................................................................................8
United States v. Bass
404 U.S. 336 (1971) ...................................................................................................................10

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United States v. Morrison
529 U.S. 598 (2000) ..................................................................................................................11

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Constitutional Provisions
Cal. Const.
art. I, § 1 .......................................................................................................................................7
Federal Statutes

8 U.S.C.
§ 1182(a)(1)(A) ............................................................................................................................7
§ 1182(a)(4)(B) ............................................................................................................................7
§ 1184(k)(3)(A)..........................................................................................................................13
§ 1231(a)(3)(C) ..........................................................................................................................13
§ 1360(c)(2) ...............................................................................................................................13
§ 1367(2) ....................................................................................................................................13
§ 1373 ................................................................................................................................ passim 
20 U.S.C.
§ 1232g ........................................................................................................................................7
42 U.S.C.
§ 290dd-2 .....................................................................................................................................7
Rules

Federal Rule of Appellate Procedure
Rule 29(a) ....................................................................................................................................1
Rule 29(a)(2) ................................................................................................................................1
Rule 29(a)(4)(A) and (E) .............................................................................................................1
Regulations

34 C.F.R.
§ 99 ..............................................................................................................................................7
42 C.F.R.
§ 2 ................................................................................................................................................7
45 C.F.R.
§ 160 ............................................................................................................................................7
§ 164 ............................................................................................................................................7
Executive Order 13,768
82 Fed. Reg. 8799 (Jan. 25, 2017) ...............................................................................................2
State Cases

Bologna v. City & Cty. of San Francisco
121 Cal. Rptr. 3d 406 (Cal. Ct. App. 2011) ..............................................................................12

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State Statutes and Codes

Cal. Civ. Code
§ 56.05 .........................................................................................................................................7
Cal. Ed. Code
§ 49075 ........................................................................................................................................7
Cal. Gov’t Code
§ 7284.2 .....................................................................................................................................11
Cal. Welf. & Inst. Code
§ 5328 ..........................................................................................................................................7
§ 10850 ........................................................................................................................................7
S.F. Admin. Code
§ 12.I.1 .......................................................................................................................................11
Legislative Materials

Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Pub. L. 104-208, §§ 384, 642, 110 Stat. 3009-546, 3009-652, 3009-707 .................................13
Protecting American Citizens Together Act
S. 1764, 114th Cong. (2015) ......................................................................................................14
State and Local Law Enforcement Act
S. 1640, 114th Cong. § 114 (a)(3)(c) (2015) .............................................................................14

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The City and County of San Francisco submits this amicus curiae brief in support of

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Defendants’ opposition to Plaintiff’s motion for a preliminary injunction. The parties have consented

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to the filing of this brief. Under Federal Rule of Appellate Procedure (“FRAP”) 29(a)(2) and this

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court’s order of March 27, 2018, adopting FRAP 29(a) for amicus briefs in this case, no motion for

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leave to file is required.1

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INTEREST OF AMICUS CURIAE
The United States’ overbroad interpretation of 8 U.S.C. § 1373 (“Section 1373”) threatens to

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preempt state and local laws that limit local involvement with federal immigration enforcement. In its

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brief, San Francisco argues that the plain meaning and intent of Section 1373 are much narrower than

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the United States contends. San Francisco agrees with California that the Tenth Amendment limits the

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reach of Section 1373, and also agrees with other local government amici that there are important

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public policy reasons to maintain a clear distinction between local law enforcement officers and

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federal immigration authorities, but it does not repeat those arguments here.

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San Francisco’s laws—like California’s—limit communications with federal immigration

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officials in ways that are consistent with Section 1373, as that statute is properly construed, but could

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be deemed to conflict with an overbroad interpretation of Section 1373. In this case, for instance, the

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United States argues that Section 1373 covers not only citizenship and immigration status information,

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but also at least three additional categories of information—home address, work address, and release

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date. The United States’ assertions in other cases make clear that this list is just the beginning, and

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that adopting its interpretation of Section 1373 would prevent local governments from maintaining the

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confidentiality of virtually any information federal immigration officials might request—including

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health records, personal family information, and financial information.

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The proper interpretation of Section 1373 is an important, but relatively small, aspect of the

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present case. Yet this Court’s decision could have implications far beyond this case. San Francisco

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has been litigating issues related to Section 1373 in City & County of San Francisco v. Trump, 275 F.

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Pursuant to FRAP 29(a)(4)(A) and (E), San Francisco certifies that it has no parent
corporation or stockholders, that this brief was written entirely by counsel for amicus and not counsel
for any party, and that no person or entity other than San Francisco contributed money to fund
preparing or submitting this brief.
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Supp. 3d 1196 (N.D. Cal. 2017), appeal argued, No. 17-17480 (9th Cir. Apr. 11, 2018), and City &

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County of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal. filed Aug. 11, 2017), and has closely

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tracked the United States’ shifting statements about Section 1373 in these and other actions. San

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Francisco submits this amicus brief to provide the Court with relevant background about the United

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States’ varied and overbroad interpretation of Section 1373, as well as case law bearing on the correct

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interpretation of Section 1373.

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INTRODUCTION AND SUMMARY OF ARGUMENT
To coerce state and local governments to assist with federal immigration enforcement, the

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United States has recently adopted an extraordinarily broad interpretation of Section 1373. The plain

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text of Section 1373 provides that state and local governments may not restrict their employees from

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sharing citizenship and immigration status information with federal immigration authorities. Yet the

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United States has broadly construed this provision to mean, for example, that local governments must

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allow their employees to share any information that supports federal immigration authorities in

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performing their duties under the Immigration and Nationality Act. See Exh. A at 39. According to

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the United States, this includes an individual’s incarceration status, release date, and release time. See

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Exh. B at 2-3. It also includes age, date of birth, and address. See Exh. C at 22:4-23. And this list is

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not exhaustive. Indeed, a judge in the Northern District of California recently observed that the United

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States’ interpretation of Section 1373 could cover “everything in a person’s life.” Exh. D at 23:1-2.

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This broad interpretation has significant consequences. The United States has threatened to

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withhold federal funding from jurisdictions that it deems out of compliance with Section 1373. See

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Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Enhancing Public Safety in the Interior of the

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United States”); City & Cty. of San Francisco v. Trump, 275 F. Supp. 3d at 1203 (invalidating Section

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9(a) of Executive Order 13,768). It has imposed Section 1373 compliance conditions on an increasing

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number of federal grants, and it has stated that jurisdictions seeking funds must certify under penalty

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of perjury that they comply with the United States’ interpretation of Section 1373. See Exh. D at

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29:16-19. And in the present case, the United States seeks to invalidate laws of the State of California

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based, in part, on a purported conflict with Section 1373.

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Section 1373 cannot do the work the United States would have it do. By its plain language,

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Section 1373 is a narrow statute that concerns only how local jurisdictions may regulate

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communications with Immigration and Customs Enforcement (“ICE”) “regarding [an individual’s]

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citizenship or immigration status.” 8 U.S.C. § 1373(a). The dispute in this case turns on how to

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interpret this phrase, and especially the word “regarding.” The United States argues that “regarding”

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sweeps in any information that could conceivably relate to an individual’s immigration status,

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including home address, work address, and release date. Pl.’s Mot. Prelim. Inj. & Mem. Law Supp.

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(“MPI”) 28-29. In other cases, the United States has taken an even broader view. See Section II,

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infra. The United States’ interpretation is wrong for the many reasons discussed in California’s

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opposition brief. Defs.’ Opp’n Pl.’s Mot. Prelim. Inj. (“Opp’n Br.”) 10-19. It also contravenes

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ordinary principles of statutory interpretation, as discussed in Section III, infra.
The Court could resolve this case without interpreting Section 1373. As California notes,

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SB 54 has a savings clause that explicitly requires compliance with Section 1373, removing any

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possible conflict. Opp’n Br. at 11. If the Court gives effect to this savings clause—as it should—there

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is no need to further interpret Section 1373. Yet if the Court does construe Section 1373, it should

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reject the United States’ overly broad interpretation and hold that Section 1373 means what it says,

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and addresses only citizenship and immigration status information.

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ARGUMENT
I.

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The plain text of Section 1373 imposes specific and narrow obligations concerning

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communications about citizenship and immigration status. Section 1373 states in full:
Communication between government agencies and the Immigration and
Naturalization Service
(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.

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Section 1373 Imposes Narrow Obligations About Citizenship And Immigration Status
Information.

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(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.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry
by a Federal, State, or local government agency, seeking to verify or
ascertain the citizenship or immigration status of any individual within
the jurisdiction of the agency for any purpose authorized by law, by
providing the requested verification or status information.

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8 U.S.C. § 1373 (emphasis added).

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As most relevant here, Section 1373(a) provides that state and local governments cannot

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prohibit or restrict their employees from sharing with federal immigration officials “information

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regarding [an individual’s] citizenship or immigration status.” On its face, this prohibition imposes a

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significant but narrow obligation: State and local governments may not restrict employees from

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communicating with federal immigration officials about an individual’s citizenship or immigration

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status, but they may regulate communications about other types of personal information. The United

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States disagrees, and contorts Section 1373 to encompass vast swaths of information that are far

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removed from the ordinary meaning of “citizenship or immigration status.”

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II.

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The United States Has Advocated An Extraordinarily Broad Interpretation Of Section
1373 That Is Unmoored From Its Text.
A.

This Interpretation Would Extend To Any Information That Could Help Federal
Immigration Authorities.

In the past year, the United States has interpreted Section 1373 in a variety of cases, as well as

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in correspondence with individual jurisdictions about their compliance with Section 1373. These

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interpretations show that the United States construes Section 1373 to extend far beyond its text—and

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far beyond the specific categories of information noted in the Motion for Preliminary Injunction filed
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in this case. In addition to release date, home address, and work address, see MPI at 28, the United

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States has argued that Section 1373 encompasses a virtually unlimited set of information that might be

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of interest to federal immigration officials. The following examples are illustrative.
● On October 11, 2017, the United States Department of Justice (“DOJ”) sent “Determination

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Letters” to several jurisdictions concerning their compliance (or alleged lack thereof) with Section

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1373. Those letters reflected DOJ’s belief that Section 1373 covers incarceration status, release date,

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and release time. See, e.g., Letter from U.S. Department of Justice to New York City 2-3 (Oct. 11,

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2017) (attached hereto as Exhibit B).
● On October 12, 2017, DOJ filed an opposition to the City of Philadelphia’s Motion for a

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Preliminary Injunction in Philadelphia v. Sessions. In the opposition, DOJ stated that Section 1373(a)

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should be read to include any information that “assists the federal government in carrying out its

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statutory responsibilities under the [INA].” See Mem. Opp’n Pl.’s Mot. Prelim. Inj. 39 (attached

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hereto as Exhibit A).
● On October 23, 2017, DOJ appeared at a hearing on San Francisco’s Motion for Summary

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Judgment in San Francisco v. Trump. Acting Assistant Attorney General Chad Readler stated that

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Section 1373 includes information about age, date of birth, and address because they are “informative

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on” or “relevant to” immigration status. See Transcript of Hearing at 21-22, San Francisco v. Trump,

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No. 17-00485 (N.D. Cal. Oct. 23, 2017) (attached hereto as Exhibit C).
● On December 13, 2017, DOJ appeared at a hearing on California’s motion for a preliminary

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injunction in California v. Sessions. There, Mr. Readler stated that Section 1373 covers any

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“information that allows [ICE] to do its job.” See Transcript of Hearing at 30:9-10,California v.

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Sessions, No. 17-4701 (N.D. Cal. Dec. 23, 2017) (attached hereto as Exhibit D).
● On February 14, 2018, DOJ filed a brief in San Francisco v. Sessions stating that

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“‘information regarding citizenship or immigration status’ encompasses information that federal

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authorities need to determine a person’s status and to take the person into custody.” See Reply in

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Support of Defendants’ Motion to Dismiss at 7, No. 17-4642 (N.D. Cal. Feb. 14, 2018) (attached

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hereto as Exhibit E); see also id. at 1, 13.

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● On April 27, 2018, DOJ responded to Requests for Admission propounded in San Francisco

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v. Sessions. DOJ admitted that it contends that a detained alien’s release date, as well as any alien’s

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residential address, location information, date of birth, familial status, and contact information are all

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“information regarding . . . immigration status” within the meaning of Section 1373. See Defendants’

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Response to San Francisco’s Requests for Admission at 5-7 (attached hereto as Exhibit F).

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● Finally, on May 4, 2018, DOJ provided verified responses to interrogatories propounded in

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San Francisco v. Sessions and California v. Sessions. San Francisco had asked DOJ to “[i]dentify all

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information that constitutes ‘information regarding . . . immigration status’ under 8 U.S.C. § 1373,

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including all types of information [the federal defendants] believe are included in this phrase, [and]

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types of information not included.” DOJ provided some examples of information it believes falls

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within the scope of Section 1373—including “an alien’s date and time of release from custody” and

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“certain . . . personal and identifying information or contact information, such as home address and

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work address.” See Defendant’s Responses and Objections to First Set of Interrogatories From City

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and County of San Francisco at 10 (attached hereto as Exhibit G); Defendant’s Responses and

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Objections to First Set of Interrogatories From State of California at 11-12 (attached hereto as Exhibit

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H). But DOJ left open that it could include much more. See Exh. G at 10; Exh. H at 11-12

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(“Depending on the situation, federal immigration authorities may need other categories of

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information that would also fall within Section 1373.”).

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Indeed, in discovery responses, DOJ set forth perhaps the broadest articulation yet of the

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meaning of “information regarding . . . immigration status,” stating that it protects the exchange of

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information “that supports federal immigration authorities in performing their duties under the INA,

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including the responsibilities to determine and track the status of aliens in the United States and to take

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custody of such persons as required.” Exh. H at 18; see also Exh. G at 10 (Section 1373 “covers

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information that federal immigration authorities need to determine and track the status of aliens in the

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United States and to take custody of such persons as required.”).

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B.

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When the United States offered its broad interpretation of Section 1373 in proceedings in the

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This Interpretation Would Sweep In Vast Swaths Of Personal Information.

Northern District of California, Judge Orrick astutely noted that if “information regarding immigration
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status” is read as broadly as DOJ urges—i.e., to extend beyond information about what a person’s

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immigration status is to cover everything that helps ICE determine what it is—the phrase could cover

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“everything in a person’s life.” Exh. D at 23:1-2.

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For example, under the Immigration and Nationality Act, individuals are inadmissible and

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removable from the country if they have a communicable disease or have not received vaccinations

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against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and

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hepatitis B, or other recommended vaccinations. 8 U.S.C. § 1182(a)(1)(A). Thus, under the United

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States’ interpretation of Section 1373, state and local governments could not prohibit doctors and other

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staff at public hospitals from sending immigration officials health records of individuals who come in

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for treatment. Similarly, state and local governments may not be able to prohibit child protective

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services from sharing information about an individual’s family status, or to prohibit the treasurer and

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tax collector from sharing information about an individual’s financial status. Under the INA, the

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Attorney General is supposed to consider such information in determining whether people are likely to

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become a “public charge,” rendering them inadmissible. Id. § 1182(a)(4)(B).

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The United States’ interpretation of Section 1373 conflicts with basic confidentiality provisions

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of federal and state law that limit disclosure and use of health, education, and welfare information.

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See, e.g., the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 C.F.R. §§ 160,

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164 (protecting confidentiality and limiting disclosure of health information); the Family Educational

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Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, 34 C.F.R. § 99 (education records); the

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Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act

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(CAAPTR), 42 U.S.C. § 290dd-2; 42 C.F.R. § 2 (information about individuals in certain substance

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abuse treatment programs); Cal. Const. art. I, § 1 (establishing a state right of privacy); California’s

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Confidentiality of Medical Information Act (CMIA), Cal. Civ. Code § 56.05 et seq. (health

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information); California Lanterman-Petris-Short Act (LPS), Cal. Welf. & Inst. Code § 5328 et seq.

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(information resulting from provision of certain mental health services); Cal. Ed. Code § 49075

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(student records); Cal. Welf. & Inst. Code § 10850 (records relating to the administration of public

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social services). As discussed below, there is no evidence that Congress intended the phrase

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“information regarding citizenship and immigration status” to cover such a wide swath of sensitive

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personal information.

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III.

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The United States’ Interpretation Ignores Established Principles Of Statutory
Construction, Which Confirm That Section 1373 Must Be Read More Narrowly.

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A.

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The Plain Text Of Section 1373 Refers Only To Citizenship And Immigration
Status Information

To determine the meaning of a statute, a court must “look first to its language, giving the words

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used their ordinary meaning.” Lawson v. FMR LLC, 134 S. Ct. 1158, 1165 (2014) (quoting Moskal v.

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United States, 498 U.S. 103, 108 (1990)). Here, the plain language of Section 1373 refers to

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information about an individual’s “citizenship or immigration status,” and the ordinary meaning of

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these words does not include home address, work address, or release date information. Indeed, a

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recent case interpreting the scope of Section 1373(a) held that “no plausible reading of ‘information

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regarding . . . citizenship or immigration status’ encompasses the release date of an undocumented

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inmate.” Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017), appeal

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docketed, No. 17-16283 (9th Cir. June 21, 2017). The Steinle court explained:

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19
20
21
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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
citizenship or immigration status, lawful or unlawful, of any individual.” 8
U.S.C. § 1373(a). If the Congress that enacted the Omnibus Consolidated
Appropriations Act of 1997 (which included § 1373(a)) had intended to bar all
restriction of communication between local law enforcement and federal
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
no plausible reading of “information regarding . . . citizenship or immigration
status” encompasses the release date of an undocumented inmate. Because the
plain language of the statute is clear on this point, the Court has no occasion to
consult legislative history.

23

Id. Steinle’s reasoning is correct, and this Court, too, can interpret Section 1373 without looking

24

beyond the text of the statute. See Campbell v. Allied Van Lines Inc., 410 F.3d 618, 620-21 (9th Cir.

25

2005) (where the statutory language is clear, the law should be interpreted and applied according to its

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plain meaning). But as discussed below, if the Court finds the text ambiguous, well-established tools

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of statutory construction confirm that Section 1373 is limited to citizenship and immigration status, not

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other types of information.
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2
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B.

“Regarding” Does Not Show A Clear Intent To Cover Other Categories Of
Information, And Instead Reflects State And Local Governments’ Limited Role In
Immigration Enforcement.

Fighting against this plain meaning, the United States argues that Section 1373’s use of the

4

phrase “information regarding . . . immigration status” expands the scope of the statute beyond

5

immigration status itself to include other categories of information that could relate to immigration

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status. MPI at 28. That is wrong. Section 1373 uses “regarding” to distinguish between unofficial

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immigration status information that may be in the possession of state or local governments, and the

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official immigration status information maintained by federal immigration authorities. This is evident

9

in the contrast between Section 1373 subsections (a) and (b), which are addressed primarily to state

10

and local governments and refer to “information regarding . . . immigration status,” and subsection (c),

11

which is addressed to federal immigration authorities and does not use “regarding” but instead speaks

12

directly about “citizenship or immigration status.” The United States argues that this difference

13

supports its broad reading of “regarding.” MPI at 28. But to the contrary, it reflects the unique and

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paramount role of the federal government with respect to immigration status information.

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State and local governments are not empowered to make immigration status determinations

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and cannot vouch for the accuracy of citizenship and immigration status information that may be in

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their possession. This information might include, for example, an individual’s self-report about

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immigration status, a third party’s statement about an individual’s immigration status, or copies of

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immigration or visa documents. This type of information is not official immigration status, but is

20

necessarily information “regarding” immigration status. Put differently, immigration status

21

information held by state and local governments will almost always be “regarding . . . immigration

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status,” rather than a definitive statement of immigration status. In contrast, subsection (c) applies to

23

information maintained by federal immigration officials, who do know individuals’ actual citizenship

24

and immigration status. The drafters of Section 1373 did not need to use “regarding” in subsection (c)

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because federal immigration officials possess actual immigration status information, not the unverified

26

information that state and local governments are likely to have in their records.

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28

Further, Ninth Circuit precedent squarely forecloses the United States’ broad interpretation of
the term “regarding.” In Roach v. Mail Handlers Benefits Plan, 298 F.3d 847 (9th Cir. 2002), the
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Ninth Circuit addressed the meaning of the term “relate to,” which DOJ has elsewhere argued is

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“closely analogous” to “regarding.” See Defendants’ Motion to Dismiss at 16, San Francisco v.

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Sessions, No. 17-4642 (Dkt. No. 66) (N.D. Cal. Jan. 19, 2018). Roach turned on the proper

4

interpretation of the preemption provision of the Federal Employees Health Benefits Act (FEHBA),

5

which states that the terms of a contract under that act “which relate to the nature, provision, or extent

6

of coverage or benefits” supersede and preempt any state or local law “which relates to health

7

insurance or plans.” 298 F.3d at 849. The Ninth Circuit stated: “[I]n the context of a similarly worded

8

preemption provision in the Employee Retirement Income Security Act (ERISA), the Supreme Court

9

has explained that the words ‘relate to’ cannot be taken too literally.” Id. The court went on to

10

explain:
“If ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy,
then for all practical purposes pre-emption would never run its course, for
‘really, universally, relations stop nowhere.’” N.Y. State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)
(quoting H. James, Roderick Hudson xli (New York ed., World’s Classics
1980)). Instead, “relates to” must be read in the context of the presumption that
in fields of traditional state regulation “the historic police powers of the States
[are] not to be superseded by [a] Federal Act unless that was the clear and
manifest purpose of Congress.” Id. at 655 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)).

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12
13
14
15
16
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Id. at 849-50.
In Roach, the Ninth Circuit followed the Supreme Court’s directive that federal statutes should

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not be interpreted to preempt matters of traditional state control unless that intent is “unmistakably

20

clear in the language of the statute.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985).

21

“In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of

22

clear statement assures that the legislature has in fact faced, and intended to bring into issue, the

23

critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349 (1971). In

24

Gregory v. Ashcroft, 501 U.S. 452 (1991), for example, the Supreme Court considered whether federal

25

law prohibiting age discrimination preempted a provision of the Missouri Constitution requiring state

26

judges to retire at age seventy. Recognizing States’ sovereign interest in determining judicial

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qualifications, the Supreme Court invoked the clear statement rule to construe the Age Discrimination

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//
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in Employment Act narrowly. Id. at 467 (“[W]e cannot conclude that the statute plainly covers

2

appointed state judges. Therefore, it does not.”).

3

More recently, in Bond v. United States, 134 S. Ct. 2077 (2014), the Supreme Court invoked

4

this clear statement rule to hold that a federal chemical weapons statute must be narrowly construed to

5

avoid conflicting with “the punishment of local criminal activity,” which is “[p]erhaps the clearest

6

example of traditional state authority.” Id. at 2089. The Court emphasized that “it is incumbent on the

7

federal courts to be certain of Congress’ intent before finding that federal law overrides the usual

8

constitutional balance of federal and state powers.” Id. (internal quotation marks omitted).

9

Applying this precedent here requires limiting Section 1373 to information about citizenship

10

and immigration status, because those are the only categories of information that are “unmistakably

11

clear” in the statute. Like the state concerns in the above cases, state and local sanctuary laws reflect

12

the exercise of core state powers. More specifically, they reflect state and local governments’

13

considered judgment that limiting involvement in federal immigration enforcement promotes public

14

health, public safety, and the general welfare in their communities. See, e.g., Cal. Gov’t Code §

15

7284.2; S.F. Admin. Code § 12.I.1; Brief of Amici Curiae 25 California Counties, Cities, and Local

16

Officials; Brief of Amici Curiae The City Of New York et al. These traditional matters of local

17

concern lie at the heart of a State’s police power. See, e.g., United States v. Morrison, 529 U.S. 598,

18

618 (2000); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).

19

A broad reading of Section 1373 would significantly intrude on state power by preventing

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States from maintaining confidential information about residents’ home addresses, work addresses,

21

and release dates, let alone private health and financial information. Roach is directly on point: The

22

use of “regarding” in Section 1373 cannot be understood to “extend to the furthest stretch of its

23

indeterminacy” without significantly reworking the ordinary balance of power between States and the

24

federal government.

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27
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C.

General Statements Of Purpose In The Legislative History Cannot Override The
Text Enacted By Congress.

Finally, the United States argues that the legislative history of Section 1373 shows
Congressional intent “to prevent any State or local law . . . that prohibits or in any way restricts any
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communication between State and local officials and the INS.” MPI at 27 (quoting Bologna v. City &

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Cty. of San Francisco, 121 Cal. Rptr. 3d 406, 414 (Cal. Ct. App. 2011)). This is wrong, and the

3

authority cited by the United States does not support using the legislative history of Section 1373 to

4

override the plain language of the statute.

5

First and foremost, the United States errs in suggesting that general statements of purpose in

6

the legislative history—or even specific statements of intent—can supplant the actual text ultimately

7

enacted by Congress. The Supreme Court rejected similar arguments in Arlington Central School

8

District Board of Education v. Murphy, 548 U.S. 291 (2006). There, parents argued that the

9

legislative history of the Individuals with Disabilities Education Act (IDEA) showed Congressional

10

intent to authorize recovery of expert fees in IDEA actions. The legislative history of the statute

11

included a Conference Committee Report stating an explicit intent that expert fees would be

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recoverable as part of attorneys fees. The Court held that this was not sufficiently clear to tell States

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what would be required to receive IDEA funds. Id. at 304. It also held that the IDEA’s overarching

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goals of providing free and appropriate public education to children with disabilities, and safeguarding

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parents’ rights to challenge educational decisions affecting their children, were too general to support

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the parents’ argument.
The IDEA obviously does not seek to promote these goals at the expense of all
other considerations, including fiscal considerations. Because the IDEA is not
intended in all instances to further the broad goals identified by respondents at
the expense of fiscal considerations, the goals cited by respondents do little to
bolster their argument on the narrow question presented here.

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20

Id. at 303.
Second, the cases cited by the United States used the legislative history of Section 1373 to

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analyze different questions than the one before this Court. In Bologna v. City and County of San

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Francisco, the California Court of Appeal evaluated whether Section 1373 was intended to protect

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individuals from violent crime, and concluded that it was not. 121 Cal. Rptr. 3d 406. Bologna found

25

that Section 1373 was instead directed at the exchange of information between local officials and

26

federal immigration authorities. Id. at 438-39. The court did not analyze the specific types of

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information included in Section 1373’s reference to immigration information.

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//
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City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), provides even less support for

2

the United States. In that case, the Second Circuit stated that the Tenth Amendment does not give

3

cities an “untrammeled right” to refuse to participate in federal programs, in the absence of any

4

countervailing state and local interests. Id. at 35. This language, cited by the United States (MPI at

5

28), does not interpret the text of Section 1373, but instead reflects the Second Circuit’s Tenth

6

Amendment analysis. The court held that since the New York City sanctuary policy at issue was “on

7

its face a mandatory non-cooperation directive,” it “need not locate with precision the line between

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invalid federal measures that seek to impress state and local governments into the administration of

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federal programs and valid federal measures that prohibit states from compelling passive resistance to

10

particular federal programs.” Id. In contrast with the New York City Executive Order at issue in City

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of New York, California’s SB 54 is designed to promote important state interests and is tailored to

12

those interests. And City of New York specifically reserved the question of whether Section 1373

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“would survive a constitutional challenge in the context of generalized confidentiality policies that are

14

necessary to the performance of legitimate municipal functions.” Id. at 37.

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D.

If Congress Had Intended Section 1373 To Apply More Broadly, It Would Have
Used Broader Language.

When Congress wants to draft legislation that applies to broad swaths of information, it knows

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how to do so. For example, the same bill that enacted Section 1373 also enacted a statute prohibiting

19

the disclosure of “any information which relates to an alien who is the beneficiary of an application

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for relief under [specific provisions] of the Immigration and Nationality Act.” 8 U.S.C. § 1367(a)(2);

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see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, §§

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384, 642, 110 Stat. 3009-546, 3009-652, 3009-707 (emphasis added). Other provisions of the INA

23

refer to “information regarding the name and address of the alien,” 8 U.S.C. § 1360(c)(2),

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“information concerning the alien’s whereabouts and activities,” 8 U.S.C. § 1184(k)(3)(A), and

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information “about the alien’s nationality, circumstances, habits, associations, and activities, and other

26

information the Attorney General considers appropriate,” 8 U.S.C. § 1231(a)(3)(C). If Congress

27

wanted Section 1373 to include these types of information, it easily could have used similar language.

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The absence of this language in Section 1373, when it appears elsewhere throughout the INA,
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confirms that Congress did not intend Section 1373 to cover “address,” “whereabouts,” or “any

2

information which relates to an alien.”

3

Indeed, Congress has failed to act on proposals to expand Section 1373 to cover these broader

4

categories of information. Most notably, then-Senator Jeff Sessions proposed an amendment to

5

Section 1373 that would have included “(1) Notifying the Federal Government regarding the presence

6

of inadmissible and deportable aliens who are encountered by law enforcement personnel of a State or

7

political subdivision of a State,” and “(2) Complying with requests for information from Federal law

8

enforcement.” See Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law

9

Enforcement Act, S. 1640, 114th Cong. § 114 (a)(3)(c) (2015). Mr. Sessions’s bill died in the Senate

10

Judiciary Committee. See also Protecting American Citizens Together Act, S. 1764, 114th Cong.

11

(2015) (failed proposal to amend Section 1373 to require that jurisdictions notify the federal

12

government when they have custody of an undocumented immigrant, or forfeit eligibility for specific

13

federal grants). In short, the United States invites the Court to expand Section 1373 where Congress

14

has chosen not to do so. The Court should decline this invitation.
CONCLUSION

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For the foregoing reasons, the Court should deny Plaintiff’s motion for a preliminary

17

injunction.

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Dated: May 18, 2018

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DENNIS J. HERRERA
City Attorney
RONALD FLYNN
Chief Deputy City Attorney
MOLLIE M. LEE
SARA J. EISENBERG
Deputy City Attorneys

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By: /s/ Mollie M. Lee
MOLLIE M. LEE
Deputy City Attorney

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Attorneys for Amicus Curiae
CITY AND COUNTY OF SAN FRANCISCO

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CERTIFICATE OF SERVICE

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I hereby certify that on May 18, 2018, I electronically transmitted the foregoing amicus

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curiae brief of the City and County of San Francisco, using the United States District Court for the

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Eastern District of California’s Electronic Filing System (ECF) and that service on all counsel of

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record will be accomplished via the ECF system.

6
Respectfully submitted,

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8

/s/ Mollie M. Lee
MOLLIE M. LEE
Deputy City Attorney
SAN FRANCISCO CITY ATTORNEY’S OFFICE

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EXHIBIT A

Case 2:17-cv-03894-MMB Document 28 Filed 10/12/17 Page 1 of 61

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THE CITY OF PHILADELPHIA,
Plaintiff,
v.

Case No. 2:17-cv-03894-MMB

JEFF SESSIONS, in his official capacity as
Attorney General of the United States,
Defendant.

MEMORANDUM IN OPPOSITION TO
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
DATED: October 12, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
LOUIS D. LAPPEN
Acting United States Attorney
JOHN R. TYLER
Assistant Director
ARJUN GARG
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, NW
Washington, DC 20530
Phone: [phone]
Fax: [phone]
E-Mail: [e-mail]
Counsel for Defendant

Case 2:17-cv-03894-MMB Document 28 Filed 10/12/17 Page 47 of 61

a.

Looking only to the face of the City’s policies, the City does not comply with

Section 1373. The statute provides, in part, that a “local government entity or official may not
prohibit, or in any way restrict, any government entity or official from sending to, or receiving
from, [federal immigration officials] information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). At least two City policies do not
comply with Section 1373, and at least three additional policies may also be non-compliant
depending on how the City interprets and applies them.
First, the City’s Executive Order No. 5-16, which the City’s brief refers to as “Detainer
Order II,” Pl.’s Mem. at 9, states in Section 1 that notice of a person’s “pending release” from City
custody shall not 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.” Dkt.
No. 1-6. This section restricts the sharing of “information regarding . . . immigration status” in
violation of 8 U.S.C. § 1373(a).11 Nothing in the statute allows the City to impose a prohibition
that limits information-sharing only to certain circumstances.

11

The INA states that the “immigration status of any individual” specifically “includ[es] . . .
that a particular alien is not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(a)
(emphasis added). “Present” means “being in a certain place and not elsewhere,” Webster’s New
International Dictionary (2d ed. 1958), so the fact that an alien is in custody for a specific duration
(in a certain place and not elsewhere) fits within the INA’s contemplation of immigration status.
Moreover, “information regarding . . . immigration status” is a broader category than “immigration
status” itself. Comparison of different subsections within Section 1373 demonstrates that
Congress used the broader “information regarding” formulation deliberately. Compare 8 U.S.C.
§ 1373(a) (concerning “information regarding . . . immigration status”) with 8 U.S.C. § 1373(c)
(discussing “immigration status” but omitting the broader “information regarding” formulation).
“Where Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Dean v. United States, 556 U.S. 568, 573 (2009) (citation
omitted). Indeed, the House Report accompanying the legislation stated that Section 1373 was
intended “to give State and local officials the authority to communicate with the INS [Immigration
and Naturalization Service] regarding the presence, whereabouts, and activities of illegal aliens.”
H.R. Rep. No. 104-469, pt. 1, at 277 (1996) (emphasis added). Custody release (. . . cont’d)
38

Case 2:17-cv-03894-MMB Document 28 Filed 10/12/17 Page 48 of 61

Second, Police Commissioner Memorandum No. 01-06 states at Section III.C that
“immigrants who are victims of crimes will not have their status as an immigrant transmitted in
any manner.” Dkt. No. 1-3. This Memorandum restricts the sharing of information regarding
immigration status in violation of 8 U.S.C. § 1373(a). To be sure, it is not the Department of
Justice’s or the Department of Homeland Security’s policy or practice to request information from
state and local jurisdictions regarding the immigration status of victims. There are, however,
instances where requesting this information could be appropriate, such as where a person is both
a perpetrator and a victim. The key point is that, notwithstanding limits that the federal government
may prudentially self-impose, nothing in 8 U.S.C. § 1373 allows the City to impose a prohibition
that limits information-sharing under these circumstances.
Additionally, three other City policies may violate Section 1373 depending on how the
City interprets and applies them. In its preliminary assessment recently transmitted to the City,
the Department has invited the City to provide clarification regarding each of these policies. See
Hanson Decl. Ex. A at 3.
The City’s Executive Order No. 8-09, which the City’s brief refers to as the
“Confidentiality Order,” Pl.’s Mem. at 8, states at Section 2(b) that police officers “shall not . . .
inquire about a person’s immigration status,” unless certain limited exceptions apply. Dkt No. 1-

information falls within the sweep of “information regarding . . . immigration status” that Congress
intended under Section 1373(a). Indeed, it is relevant to the federal government’s statutory duties,
enacted at the same time as Section 1373, to “take into custody any alien who” has committed
certain offenses, 8 U.S.C. § 1226(c)(1)(A), and to “take into custody any alien who . . . is
inadmissible . . . when the alien is released, without regard to whether the alien is released on
parole, supervised release, or probation,” 8 U.S.C. § 1226(c)(1)(D). It is sensible to read section
1373(a) to include information that assists the federal government in carrying out its statutory
responsibilities under the same Act. See United Savings Ass’n v. Timbers of Inwood Forest
Assocs., 484 U.S. 365, 371 (1988) (“A provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings
produces a substantive effect that is compatible with the rest of the law.”).
39

EXHIBIT B

U.S. Department of Justice
Office of Justice Programs

_________________________________________________________________________
Washington, D.C. 20531

October 11, 2017

Elizabeth Glazer
Director
New York City Mayor’s Office of Criminal Justice
1 Centre Street, Room 1012N
New York, NY 10007-1602
Dear Ms. Glazer,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.C. § 1373; to
undertake a review to validate your jurisdiction’s compliance with 8 U.S.C. § 1373; and to
submit documentation, including an official legal opinion from counsel, adequately supporting
the validation. Thank you for your recent submission. The Department of Justice has reviewed
your submission, all attached documentation, and your jurisdiction’s laws, policies, and practices
relating to compliance with section 1373, to the extent they were provided or are readily
available.
This letter is to inform you that, based on a preliminary review, the Department has
determined that your jurisdiction appears to have laws, policies, or practices that violate 8 U.S.C.
§ 1373. These laws, policies, or practices include, but may not be limited to:


Executive Order No. 41. Section 4 of the Executive Order states that police officers “shall
not inquire about a person’s immigration status unless investigating illegal activity other
than mere status as an undocumented alien.” Under 8 U.S.C. § 1373(b)(1), however,
New York may not “in any way restrict” the “requesting” of “information regarding . . .
immigration status” from federal immigration officers. On its face, the Department has
determined that the Executive Order appears to bar New York officers from requesting
information regarding immigration status from federal immigration officers. In order to
comply with 8 U.S.C. § 1373, the Department has determined that New York would need
to certify that it interprets and applies this section to not restrict New York officers and
employees from requesting information regarding immigration status from federal
immigration officers. The Department has also determined that New York would need to
certify that it has communicated this interpretation to its officers and employees. If New
York cannot provide this certification, the Department has determined that this provision
violates section 1373(b).



Executive Order No. 41. Section 2 of the Executive Order states that New York officers
and employees “shall [not] disclose confidential information,” which is defined to include
“immigration status.” Section 2(b) and (e) contain a few exceptions, including when
“disclosure is required by law.” In order to comply with 8 U.S.C. § 1373, the
Department has determined that New York would need to certify that it interprets and
applies this Order to not restrict New York officers and employees from sharing
information regarding immigration status with federal immigration officers. The
Department has also determined that New York would need to certify that it has
communicated this interpretation to its officers and employees. If New York cannot
provide this certification, the Department has determined that this provision violates
section 1373(a).



New York Administrative Code § 9-131. Section 9-131(b) states that New York City
Department of Corrections may not “honor a civil immigration detainer . . . by notifying
federal immigration authorities of [a] person’s release,” except in certain limited
circumstances.1 Section 9-131(d) states that this law shall not be construed to “prohibit
any city agency from cooperating with federal immigration authorities when required
under federal law.” It also states that this law shall not be construed to “create any . . .
duty or obligation in conflict with any federal . . . law.” In order to comply with 8 U.S.C.
§ 1373, the Department has determined that New York would need to certify that it
interprets and applies Section 9-131(b) and (d) to not restrict New York officers from
sharing information regarding immigration status with federal immigration officers,
including information regarding the date and time of an alien’s release from custody.
The Department has also determined that New York would need to certify that it has
communicated this interpretation to its officers and employees. If New York cannot
provide this certification, the Department has determined that this provision violates
section 1373(a).



New York Administrative Code § 9-131. Section 9-131(h)(1) states that New York City
Department of Corrections personnel shall not “expend time while on duty or department
resources . . . in response to federal immigration inquiries or in communicating with
federal immigration authorities regarding any person’s incarceration status, release dates,
court appearance dates, or any other information related to persons in the department’s
custody, other than information related to a person’s citizenship or immigration status,”
except where certain exceptions apply. As discussed above, section 9-131(d) states that
this law shall not be construed to “prohibit any city agency from cooperating with federal
immigration authorities when required under federal law.” It also states that this law

An ICE detainer form ordinarily requests that a jurisdiction (1) provide advance notice of the alien’s release; and
(2) maintain custody of the alien for up to 48 hours beyond the scheduled time of release. The Department is not
relying on New York’s restriction of the latter form of cooperation in this preliminary assessment.
1

2

shall not be construed to “create any . . . duty or obligation in conflict with any federal
. . . law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that
New York would need to certify that it interprets and applies Section 9-131(h) and (d) to
not restrict New York officers from sharing information regarding immigration status
with federal immigration officers, including information regarding an alien’s
incarceration status and release date and time. The Department has also determined that
New York would need to certify that it has communicated this interpretation to its
officers and employees. If New York cannot provide this certification, the Department
has determined that this provision violates section 1373(a).
Your jurisdiction may submit a response to this preliminary assessment, as well as any
additional evidence you would like the Department to consider, before it reaches its final
determination. Please submit all additional documentation by October 27, 2017. Once the
Department has had an opportunity to review your submission, the Department will notify you of
its final determination.
This letter reflects the Department’s preliminary assessment of your jurisdiction’s
compliance with 8 U.S.C. § 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.
Additionally, as the United States continues to collect information about your jurisdiction, it
reserves the right to identify additional bases of potential violations of 8 U.S.C. § 1373.
Sincerely,

Alan Hanson
Acting Assistant Attorney General

3

EXHIBIT C

Pages 1 - 37
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Before The Honorable William H. Orrick, Judge
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff,
VS.
DONALD J. TRUMP, ET AL.,
Defendants.
COUNTY OF SANTA CLARA,
Plaintiff,
VS.
DONALD J. TRUMP, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

NO. CV 17-00485-WHO

NO. CV 17-00574-WHO

San Francisco, California
Monday, October 23, 2017
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiff City and County of San Francisco in
CV 17-00485-WHO:
OFFICE OF THE CITY ATTORNEY
City Hall, Room 234
1 Dr., Carlton B, Goodlett Place
San Francisco, CA 94102
BY: DENNIS J. HERRERA, CITY ATTORNEY
(Appearances continued on the next page)
Reported By:

Pamela A. Batalo, CSR No. 3593, RMR, FCRR
Official Reporter

APPEARANCES CONTINUED:
For Plaintiff City and County of San Francisco in
CV 17-00485-WHO:
OFFICE OF THE CITY ATTORNEY
1390 Market Street - 7th Floor
San Francisco, CA 94102
BY: MOLLIE LEE, DEPUTY CITY ATTORNEY
YVONNE MERE, DEPUTY CITY ATTORNEY
AILEEN MCGRATH, DEPUTY CITY ATTORNEY
For Plaintiff County of Santa Clara in CV 17-00574-WHO:
KEKER, VAN NEST & PETERS
633 Battery Street
San Francisco, CA 94111
BY: CODY S. HARRIS, ESQUIRE

BY:

OFFICE OF THE COUNTY COUNSEL
County of Santa Clara
70 West Hedding Street
9th Floor, East Wing
San Jose, CA 95110
DANIELLE L. GOLDSTEIN,
DEPUTY COUNTY COUNSEL
GRETA S. HANSEN,
CHIEF ASSISTANT COUNTY COUNSEL
JAVIER SERRANO,
DEPUTY COUNTY COUNSEL

For Defendants:

BY:

U.S. DEPARTMENT OF JUSTICE
United States Attorney's Office
450 Golden Gate Avenue
Box 36055
San Francisco, CA 94102
CHAD READLER,
ACTING ASSISTANT ATTORNEY GENERAL
KIMBERLY FRIDAY,
DEPUTY CHIEF, CIVIL DIVISION

21

1

employees about this federal requirement because if they're not

2

that in many ways would be viewed as a restriction in any way

3

on the City employees ability to honor 1373.

4

know about it, it's awfully hard to think they could be

5

complying with 1373.

6
7

THE COURT:

10

Are you arguing that the City's ordinance

would have to include reference to 1373?

8
9

If they don't

MR. READLER:

It could.

I'm not saying it has to.

It

certainly could.
Also there could be sort of an affirmative sharing of that

11

information.

12

hand out to individuals that states the face of the statute but

13

does nothing more to explain it or explain why compliance is

14

important.

15

I think the City pointed to one memo that they

In the Steinle case we know that the City had a policy

16

issued by the sheriff.

17

policy articulated in the ordinance and so we don't know

18

exactly what the City is doing to enforce these sections, so I

19

think those are important questions that we would want to

20

answer.

21

That was a little different than the

And then I'm going to close with Section 12I which is a

22

long section.

23

C -- there is a prohibition on providing the personal

24

information of any inmate to immigration officers.

25

enforcement officials shall not provide any individual's

And at 12I.3, Section C -- so 12I.3, Section

"Law

22

1

personal information to a federal immigration officer."

2

believe that personal information in many ways can also be

3

included under 1373, and I will give you a couple of examples.

4

And we

An individual's identity or age may well be relevant to

5

their immigration status.

6

A-number, an Alien Registration Number, that would indicate

7

that they are an alien and may well be deportable.

8
9

For example, if an individual has an

Their date of birth is informative on immigration status
because it relates to derivative immigration status so, for

10

example, derivative immigration status is for children of

11

non-immigrants.

12

You need the birth date to understand that.

An individual's residence, another piece of personal

13

information.

14

example, if you are here on a B2 non-immigrant visitor status,

15

you have to maintain a permanent residence outside the

16

United States, and if you disclose you had a permanent

17

residence inside the United States, that would be a violation

18

of your status in the country.

19

It's relevant to the 1373 consideration.

For

And of course, the address is also helpful to the

20

United States because if they can't take someone into custody

21

immediately when they're released from prison, they would want

22

to find their address to do it then, given the change in their

23

immigration status.

24
25

And I will point out that -- in my reading, there is no
savings clause here in Section 12I, so I'm not aware of one of

EXHIBIT D

Pages 1 - 49
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE WILLIAM H. ORRICK, JUDGE
STATE OF CALIFORNIA, ex rel,
)
XAVIER BECERRA, in his official)
capacity as Attorney General
)
of the State of California,
)
)
Plaintiff,
)
)
vs.
)
)
JEFFERSON B. SESSIONS, in his )
official capacity as Attorney )
General of the United States; )
ALAN R. HANSON, in his official)
capacity as Principal Deputy
)
Acting Assistant Attorney
)
General; UNITED STATES
)
DEPARTMENT OF JUSTICE; and
)
DOES 1-100,
)
)
Defendants.
)
_______________________________)

NO. C 17-4701 WHO

San Francisco, California
Wednesday, December 13, 2017

TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For the Plaintiff:

By:

State of California
Department of Justice
Office of the Attorney General
Civil Rights Enforcement Section
300 South Spring Street
Los Angeles, California 90013
Lee I. Sherman
Deputy Attorney General

(Appearances continued on next page)
Reported By:

Katherine Powell Sullivan, CSR #5812, RPR, CRR
Official Reporter - U.S. District Court

APPEARANCES (CONTINUED):
For the Plaintiff:

By:

For Defendants:

By:

By:

By:

State of California
Department of Justice
Office of the Attorney General
1515 Clay Street, 21st Floor
Okaland, California 94612-1492
Lisa Ehrlich
Sarah E. Belton
Deputy Attorneys General
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Chad A. Readler
Acting Assistant Attorney General
United States Department of Justice
Federal Programs Branch
901 E Street, N.W., Room 986
Washington, D.C. 20530
W. Scott Simpson
Senior Counsel
United States Department of Justice
United States Attorney's Office
450 Golden Gate Avenue, 9th Floor
San Francisco, California 94102
Steven J. Saltiel
Assistant United States Attorney

23

1
2

THE COURT:

But immigration -- "regarding immigration

status" could mean everything in a person's life.

3

MR. SHERMAN:

4

THE COURT:

Right.

Which seems quite broad to me.

But it

5

might be that there's a different definition that I'm going to

6

hear.

7

So why -MR. SHERMAN:

Sure.

Sure.

8

To that point, Your Honor, because the statute is not

9

unmistakably clear, as the Supreme Court said in Gregory and in

10

Bond, then that -- that 1373 should be narrowly read to

11

encompass the information that this Congress said, and which is

12

immigration and citizenship status information.

13
14

THE COURT:

All right.

I think I'm about

ready to hear Mr. Readler.

15

MR. SHERMAN:

16

THE COURT:

17

MR. READLER:

18

THE COURT:

19

MR. READLER:

20

THE COURT:

21

All right.

Sure.

Thank you.

Thank you, Mr. Sherman.
Hi. Good afternoon, Your Honor.

Good afternoon.
If it please the Court.

It's a pleasure to see you.

Now, I want to ask you a few questions before you launch

22

into the things that you want to make sure that I know.

23

And so start with Judge Baylson's observation that

24

criminal law is integral to immigration law; but immigration

25

law has nothing to do with local criminal laws.

29

1

won't be because the clock runs out.

2

THE COURT:

Does the State have a legitimate concern

3

that this Justice Department is going to go after them because

4

they signed, in good faith, a certification that they're in

5

compliance with 1373?

6

MR. READLER:

Well, I'm not aware of any perjury, you

7

know, prosecutions or some of the criminal aspects that the

8

Court referred to earlier.

9

upfront about our reading of 1373.

10

But, certainly, we're being very

Of course, last year the Department put the 1373

11

requirement into these grants.

12

for this year we won't be imposing any penalties; but we're

13

giving you a year, essentially, to get your house in order.

14

And then there have been a number of follow-up communications

15

up until this point.

16

And at that point it said that

So this year the Government is expecting that the State,

17

if they certify compliance, will be agreeing to the

18

Government's interpretation on the issues that we've raised to

19

them.

20

There's the two issues, the release date and the address.

21

Those are the two specific issues that we have -- we have

22

raised to the State.

23

our interpretation of those issues.

24
25

THE COURT:

And we have been going back and forth on

So what is the Government's interpretation

of "information regarding status"?

Because it seems totally

30

1
2
3

amorphous to me.
MR. READLER:
broad phrase.

Sure.

Well, obviously, Congress chose a

It could have said "just immigration status."

4

THE COURT:

5

MR. READLER:

Or maybe an ambiguous phrase.
Well, it certainly includes more than

6

just immigration status, because they said that in part C, I

7

think of 1373.

8
9
10
11

And part A says "information regarding."

What I think that means, at bottom, is that the Congress
expected that ICE would have the information that allows it to
do its job.
And one of the key aspects of ICE is that when an

12

individual is being held by a state or local government, that

13

person is only removable once their sentence ends and they're

14

released.

15

So, surely, Congress had in mind that a release date would

16

be the kind of information that a state or city could not

17

exclusively bar -- not to require, but to exclusively bar from

18

sharing with the federal government.

19

completely frustrates the removable system in ICE's job, which

20

is a significant preference to take someone into custody when

21

they're leaving their state or local penitentiary as opposed to

22

then going out on the streets and finding them later.

23

Because, otherwise, that

And I think the history lesson here is important because

24

this law, of course, was passed in 1996.

25

that at that time there was no doubt that Congress thought that

And it's clear to me

EXHIBIT E

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 1 of 20

1
2
3
4
5
6
7
8
9
10
11
12
13

CHAD A. READLER
Acting Assistant Attorney General
ALEX G. TSE
Acting United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17
18

CITY AND COUNTY OF SAN
FRANCISCO,

19
20
21
22
23

Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
Defendants.

24
25
26
27
28
Reply in Supp. Motion to Dismiss
No. 3:17-cv-04642-WHO

No. 3:17-cv-04642-WHO
REPLY IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS
Date: February 28, 2018
Time: 2:00 p.m.

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 5 of 20

1
2

INTRODUCTION
San Francisco seeks federal funds to support its local law enforcement prerogatives, yet

3

refuses any reciprocal obligation that its law enforcement officials recognize federal law enforce-

4

ment prerogatives by sharing information regarding individuals under local detention. The City

5

also seeks an order that its ordinances prohibiting the provision of that information do not violate

6

federal law.

7

Although the Department of Justice (“DOJ” or “Department”) has expressed concern that

8

Chapters 12H and 12I of the San Francisco Administrative Code may violate 8 U.S.C. § 1373, the

9

parties have not yet completed their discussions on that subject and DOJ’s Office of Justice

10

Programs (“OJP”) has recently requested certain documents from the City to facilitate making that

11

decision administratively. Thus, plaintiff’s claim for a ruling on whether Chapters 12H and 12I

12

violate Section 1373 is constitutionally unripe. In any event, assuming this claim were justiciable,

13

the Court should dismiss the claim on its merits. Section 1373 protects the exchange of “informa-

14

tion regarding the citizenship or immigration status” of individuals with federal immigration

15

authorities – information needed by federal authorities to determine the immigration status of aliens

16

and to take them into custody upon their release from criminal detention – and San Francisco’s

17

ordinances “prohibit” and “restrict” the transmission of that information. 8 U.S.C. § 1373(a).

18

Nor, in any event, is there any legal basis for plaintiff’s objection to complying with grant

19

conditions, a traditional aspect of participation in the Edward Byrne Memorial Justice Assistance

20

Grant Program. To further information-sharing, the Byrne JAG Program requires participants to

21

comply with Section 1373, to give federal immigration authorities access to the City’s detention

22

facilities to meet with aliens, and to give those authorities “as much advance notice as practicable”

23

before releasing an alien. These conditions are consistent not only with the statutes governing the

24

Byrne JAG Program, but also with the Program’s legislative history, which confirms that those

25

statutes empower DOJ and OJP to “place special conditions on all grants and to determine priority

26

purposes for formula grants,” H.R. Rep. No. 109-233, at 101 (2005); see 34 U.S.C. § 10102(a)(6).

27

And these conditions satisfy the Spending Clause: they articulate the required conduct and further

28

the Program’s goals of advancing criminal justice and public safety, easily surpassing the “some
Reply in Supp. Motion to Dismiss
No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 11 of 20

1

(Dkt. No. 67 at 12). Consistent with the INA, “information regarding citizenship or immigration

2

status” encompasses information that federal authorities need to determine a person’s status and

3

to take the person into custody. It does not encompass, for example, whether the individual

4

receives City health services or unemployment services, whether the individual pays his or her tax

5

bills or utility bills, whether the individual’s vehicle is properly registered, or a great many other

6

categories of unrelated information that San Francisco may have.

7

In attempting to limit the scope of Section 1373, plaintiff also argues that understanding

8

the statute as encompassing more than “citizenship or immigration status” alone would invade the

9

“heart of the state’s police power” and “supersede San Francisco’s exercise of its core police

10

powers” (Dkt. No. 67 at 13). But the admission, presence, and potential removal of aliens in the

11

United States are quintessentially the responsibility of the Federal Government, and the information

12

protected by Section 1373 is needed to carry out those responsibilities. See Arizona v. United

13

States, 567 U.S. 387, 394 (2012). Protecting the transmission of information regarding the

14

immigration status of such persons to federal immigration authorities, far from invading the

15

“heart of the state’s police power,” merely ensures that federal officers can perform their duties.

16
17

2.

The Court Should Deny Plaintiff’s Request for a Ruling
that Chapter 12I Complies with Section 1373

18

In light of that correct understanding of Section 1373, the Court should dismiss plaintiff’s

19

claim for a ruling that its ordinances are consistent with the federal statute. Chapter 12I provides

20

that “[l]aw enforcement officials shall not . . . provide any individual’s personal information to a

21

federal immigration officer, on the basis of an administrative warrant, prior deportation order, or

22

other civil immigration document based solely on alleged violations of the civil provisions of

23

immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e). Personal information is defined

24

broadly as including “any confidential, identifying information . . . including, but not limited to

25

. . . contact information . . . .” Id. § 12I.2. Aside from seeking to limit “information regarding

26

citizenship or immigration status” to nothing but mere immigration status, plaintiff largely

27

ignores defendants’ explanation as to why this provision violates Section 1373. Most notably, the

28

City ignores the fact that “contact information,” including a person’s address, relates to several
Reply in Supp. Motion to Dismiss
No. 3:17-cv-04642-WHO

7

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 17 of 20

1
2

of any limitations on the spending power.
1.

The Challenged Conditions are Unambiguous

3

Plaintiff’s argument on the clarity of the access and notice conditions is based primarily

4

on the language in the FY 2017 grant solicitations (Dkt. No. 67 at 25; Dkt. No. 61, Ex. B at 30).

5

The purpose of that language, however, was only to inform potential applicants that conditions

6

along those lines would be included in the grant documents. The language of the actual

7

conditions, as contained in the awards that OJP issued before the conditions were enjoined in

8

Chicago v. Sessions, 264 F. Supp. 3d 933, 945 (N.D. Ill. 2017), was thoroughly detailed. See

9

Request for Judicial Notice (“RJN”), Ex. E ¶¶ 53, 55, 56; Ex. F ¶¶ 53, 55, 56 (Dkt. No. 66-1).

10

For example, plaintiff complains that the grant solicitations did not make clear “whether notice

11

must be given only when the scheduled release date and time is known 48 hours in advance . . . or

12

whether jurisdictions must hold inmates in custody for additional time to provide a full period of

13

notice” (Dkt. No. 67 at 25). The actual conditions answer both of those questions, specifying that

14

the notice condition requires “only as much advance notice as practicable” and that nothing in the

15

condition “shall be understood to authorize or require any recipient . . . to maintain (or detain) any

16

individual in custody beyond the date and time the individual would have been released in the

17

absence of this condition.” RJN, Ex. E ¶ 55; Ex. F ¶ 55.

18

As for the condition requiring compliance with Section 1373, defendants’ discussion

19

regarding Chapters 12H and 12I of the San Francisco Administrative Code should obviate any

20

uncertainty about the meaning of this condition. The Department of Justice clearly understands

21

“information regarding . . . citizenship or immigration status” as encompassing information

22

needed by federal immigration authorities to determine as individual’s immigration status and to

23

take custody of the individual upon release criminal detention. And defendants clearly under-

24

stand the Section 1373 condition as barring a grantee from prohibiting its employees from

25

providing an alien’s identifying information or release date to federal authorities.

26

Plaintiff raises other factual questions that may arise in implementing these conditions and

27

argues that the conditions are ambiguous because they fail to address those scenarios (Dkt. No. 67

28

at 26). The Court of Appeals has made clear, however, that the Spending Clause does not require
Reply in Supp. Motion to Dismiss
No. 3:17-cv-04642-WHO

13

EXHIBIT F

1
2
3
4
5
6
7
8
9
10
11
12
13
14

CHAD A. READLER
Acting Assistant Attorney General
ALEX G. TSE
Acting United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
LAURA A. HUNT
DANIEL D. MAULER
Trial Attorneys
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

15
16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
20

CITY AND COUNTY OF SAN
FRANCISCO,

21
22
23

Plaintiff,
v.

No. 3:17-cv-04642-WHO
DEFENDANTS’ RESPONSE TO
SAN FRANCISCO’S REQUESTS FOR
ADMISSION

JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,

24
25
26

Defendants.
Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedures, the defendants

27

respond as follows to Plaintiff City and County of San Francisco’s First Set of Requests for

28

Admissions to Defendants, served on March 28, 2018.
Defs’ Response San Francisco RFAs
No. 3:17-cv-04642-WHO

1
2

REQUEST NO. 7.:

3

Admit that Defendants take the position that “information regarding . . . immigration status”

4

under Section 1373 includes all “information that allows ICE to do its job.” State of California ex

5

rel. Becerra v. Sessions, Case No. 3:17-CV-4701-WHO, Hr’g. Tr. at 30:5-10 (Dec. 13, 2017).

6

Defendants’ Response:

Denied.

7
8

REQUEST NO. 8.:

9

Admit that Section 1373 does not require jurisdictions to comply with detainer requests

10

instructing jurisdictions to hold an individual for up to 48 business hours beyond the time the

11

individual would otherwise have been released.

12

Defendants’ Response:

Objection. Defendants object that this request calls for a

13

pure conclusion of law and hereby incorporate by reference the same objection lodged as to

14

Request No. 2 above. Subject to the forgoing objection, the defendants’ position is that

15

Section 1373 does not require jurisdictions to detain an individual beyond the time the

16

individual would otherwise have been released.

17
18

REQUEST NO. 9.:

19

Admit that Defendants take the position that a person’s residential address constitutes

20

“information regarding . . . immigration status” under Section 1373.

21

Defendants’ Response:

Defendants DENY this request to the extent that

22

“person” refers to a non-alien. To the extent that “person” refers only to an alien, then

23

Defendants ADMIT this Request to that limited extent.

24
25

REQUEST NO. 10.:

26

Admit that Defendants take the position that information regarding a person’s location

27

information constitutes “information regarding . . . immigration status” under Section 1373.

28

5
Defs’ Response San Francisco RFAs
No. 3:17-cv-04642-WHO

1

Defendants’ Response:

Defendants DENY this request to the extent that

2

“person” refers to a non-alien. To the extent that “person” refers only to an alien, then

3

Defendants ADMIT this Request to that limited extent.

4
5

REQUEST NO. 11.:

6

Admit that Defendants take the position that the release date of a detained person constitutes

7

“information regarding . . . immigration status” under Section 1373.

8
9
10

Defendants’ Response:

Defendants DENY this request to the extent that a

“detained person” refers to a non-alien. To the extent that “detained person” refers only to
an alien, then Defendants ADMIT this Request to that limited extent.

11
12

REQUEST NO. 12.:

13

Admit that Defendants take the position that a person’s date of birth is “information regarding . . .

14

immigration status” under Section 1373.

15

Defendants’ Response:

Defendants DENY this request to the extent that

16

“person” refers to a non-alien. To the extent that “person” refers only to an alien, then

17

Defendants ADMIT this Request to that limited extent.

18
19

REQUEST NO. 13.:

20

Admit that Defendants take the position that information about a person’s familial status—i.e.,

21

information about whether a person is related by blood or marriage to other persons—is

22

“information regarding . . . immigration status” under Section 1373.

23

Defendants’ Response:

Defendants DENY this request to the extent that

24

“person” refers to a non-alien. To the extent that “person” refers only to an alien, then

25

Defendants ADMIT this Request to that limited extent.

26
27
28

6
Defs’ Response San Francisco RFAs
No. 3:17-cv-04642-WHO

1

REQUEST NO. 14.:

2

Admit that Defendants take the position that a person’s contact information is “information

3

regarding . . . immigration status” under Section 1373.

4

Defendants’ Response:

Defendants DENY this request to the extent that

5

“person” refers to a non-alien. To the extent that “person” refers only to an alien, then

6

Defendants ADMIT this Request to that limited extent.

7
8

REQUEST NO. 15.:

9

Admit that Defendants take the position that a person’s identity, see Dkt. No. 66 at 15, is

10
11

“information regarding . . . immigration status” under Section 1373.
Defendants’ Response:

Defendants DENY this request to the extent that

12

“person” refers to a non-alien. To the extent that “person” refers only to an alien, then

13

Defendants ADMIT this Request to that limited extent.

14
15

REQUEST NO. 16.:

16

Admit that Defendants take the position that the Section 1373 Certification requires jurisdictions

17

to adopt the federal government’s interpretation of what information is “information regarding . . .

18

immigration status” under Section 1373.

19

Defendants’ Response:

Admitted.

20
21

REQUEST NO. 17.:

22

Admit that a jurisdiction cannot lawfully execute the Section 1373 Certification if it prohibits

23

employees from sharing information about a person’s release date from custody with the federal

24

government.

25

Defendants’ Response:

Objection. Defendants object that this request calls for a

26

pure conclusion of law and hereby incorporate by reference the same objection lodged as to

27

Request No. 2 above.

28

7
Defs’ Response San Francisco RFAs
No. 3:17-cv-04642-WHO

1

San Francisco’s compliance with Section 1373, see, e.g., Dkt. No. 66 at 12-13 & n. 6; Dkt. No. 72

2

at 2-4, provides no way for San Francisco to dispute the federal government’s interpretation of

3

Section 1373.

4

Defendants’ Response:

Denied.

5
6

Dated: April 27, 2018

7

CHAD A. READLER
Acting Assistant Attorney General

8

ALEX G. TSE
Acting United States Attorney

9
10

JOHN R. TYLER
Assistant Director

11
12

/s/ W. Scott Simpson

13
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel

14
15

LAURA A. HUNT
DANIEL D. MAULER
Trial Attorneys

16
17

Attorneys, Department of Justice
Civil Division, Room 7210
Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]

18
19
20
21
22

COUNSEL FOR DEFENDANTS

23

JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF
JUSTICE

24
25
26
27
28

14
Defs’ Response San Francisco RFAs
No. 3:17-cv-04642-WHO

EXHIBIT G

1
2
3
4
5
6
7
8
9
10
11
12
13
14

CHAD A. READLER
Acting Assistant Attorney General
ALEX G. TSE
Acting United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
LAURA A. HUNT
DANIEL D. MAULER
Trial Attorneys
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

15
16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
20

CITY AND COUNTY OF SAN
FRANCISCO,

21
22
23

Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,

No. 3:17-cv-04642-WHO
DEFENDANTS’ RESPONSES AND
OBJECTIONS TO FIRST SET OF
INTERROGATORIES FROM CITY AND
COUNTY OF SAN FRANCISCO

24
25
26

Defendants.
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedures, the defendants

27

respond as follows to Plaintiff City and County of San Francisco’s Interrogatories to Defendants,

28

Set One, served on March 28, 2018.
Defs’ Response SF Interrogs.
No. 3:17-cv-04642-WHO

1

sent a letter to Mayor Mark Farrell, requesting documents to assist in the Department of Justice’s

2

review of San Francisco’s compliance with the conditions of its FY 2016 JAG grant, including

3

compliance with Section 1373. City Attorney Dennis J. Herrera responded to that letter on

4

February 23, 2018.

5

The foregoing informal fact-gathering is the first step in reaching a final decision on San

6

Francisco’s compliance. Since the Department of Justice is still in the fact-gathering stage, it

7

cannot anticipate exactly when it will make a final determination. This depends, in part, on how

8

transparent and cooperative San Francisco is during this process.

9

The following documents were part of or arose out this process:

10

•

Documents in the Administrative Record filed on March 23, 2018 (Dkt. No. 84)

11

•

Email from Karol V. Mason, (former) Assistant Attorney General, Office of Justice

12

Programs, to Michael E. Horowitz, Inspector General, Re: Referral to OIG Re: 18 U.S.C.

13

Section 1373, Apr. 8, 2016 (with attachments)

14

•

15
16

2016-DJ-BX-0898, Signed by Mayor Edwin Lee, Oct. 7, 2016
•

17
18

•

Letter from Dennis J. Herrera, City Attorney, to Alan R. Hanson, Acting Assistant
Attorney General, Dec. 7, 2017

•

21
22

Letter from Alan Hanson to Edwin Lee, Mayor, City and County of San Francisco, Nov.
15, 2017

19
20

San Francisco Grant Award Document, Byrne JAG Local, FY 2016, Award Number

Letter from Jon Adler, Director, Bureau of Justice Assistance, to Mark Farrell, Mayor,
City and County of San Francisco, Jan. 24, 2018

•

Letter from Dennis J. Herrera, City Attorney, to Jon Adler, Director, Bureau of Justice

23

Assistance, Feb. 23, 2018

24

6. Identify all information that constitutes “information regarding . . . immigration status”

25

under 8 U.S.C. § 1373, including all types of information Defendants believe are included in this

26

phrase, types of information not included, and state all facts and identify all documents forming

27

the basis of that position.

28

9
Defs’ Response SF Interrogs.
No. 3:17-cv-04642-WHO

1
2

Response: Subject to the Objections to All Interrogatories set forth above, defendants
state the following:

3

Section 1373 protects, among other things, the sharing of “information regarding”

4

citizenship and immigration status. Congress’s use of “information regarding” in Section 1373(a)

5

was intended to broaden the scope of the information covered beyond an individual’s mere

6

technical status, as demonstrated by comparing Section 1373(a) to Section 1373(c), which uses

7

the different phrase “[immigration] status information.” 8 U.S.C. § 1373. Although Section 1373

8

does not cover all information regarding an individual, it covers information that federal immigra-

9

tion authorities need to determine and track the status of aliens in the United States and to take

10
11

custody of such persons as required.
The most common category of information covered by Section 1373 and sought be federal

12

immigration authorities is an alien’s date and time of release from custody. This is “information

13

regarding” immigration status because, among other reasons, it implicates the federal authority to

14

take custody pursuant to the removal statute, 8 U.S.C. § 1231. In other words, release informa-

15

tion bears directly on whether the alien will be able to remain in the United States. Moreover,

16

another provision of the INA, 8 U.S.C. § 1357(g)(10)(A), defines the phrase “immigration status”

17

to include whether “a particular alien is not lawfully present in the United States.” Whether an

18

alien has been released from state or local custody is highly relevant to the alien’s “lawful

19

presence” given that Congress has explicitly provided that unlawfully present aliens are not

20

subject to final orders of removal only when they are serving a criminal sentence in state or local

21

custody. See 8 U.S.C. § 1231(a)(4).

22

Certain of an alien’s personal and identifying information or contact information, such as

23

home address and work address, are also relevant to many immigration status issues, including

24

whether an alien admitted in a particular nonimmigrant status has remained in the United States

25

beyond their authorized period of admission, evidenced an intent not to abandon his or her

26

foreign residence, or otherwise violated the terms and conditions of such admission (e.g., engaged

27

in unauthorized employment), see 8 U.S.C. § 1227(a)(1)(C), 8 C.F.R. § 214.1; whether the alien

28

10
Defs’ Response SF Interrogs.
No. 3:17-cv-04642-WHO

EXHIBIT H

1
2
3
4
5
6
7
8
9
10
11
12
13
14

CHAD A. READLER
Acting Assistant Attorney General
ALEX G. TSE
Acting United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
LAURA A. HUNT
DANIEL D. MAULER
Trial Attorneys
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

15
16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
20
21
22
23
24
25
26
27
28

STATE OF CALIFORNIA, ex rel. XAVIER
BECERRA, Attorney General of the State of
California,
Plaintiff,
v.

No. 3:17-cv-04701-WHO
DEFENDANTS’ RESPONSES AND
OBJECTIONS TO FIRST SET OF
INTERROGATORIES FROM
STATE OF CALIFORNIA

JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
Defendants.
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedures, the defendants
respond as follows to Plaintiff State of California’s First Set of Interrogatories to Defendants,
served on March 28, 2018.
Defs’ Response CA Interrogs.
No. 3:17-cv-04701-WHO

1

The foregoing informal fact-gathering is the first step in reaching a final decision on

2

California’s compliance. Since the Department of Justice is still in the fact-gathering stage, it

3

cannot anticipate exactly when it will make a final determination. This depends, in part, on how

4

transparent and cooperative California is during this process.

5

The following documents were part of or arose out this process:

6

•

Documents in the Administrative Record filed on March 23, 2018 (Dkt. No. 96)

7

•

Email from Karol V. Mason, (former) Assistant Attorney General, Office of Justice

8

Programs, to Michael E. Horowitz, Inspector General, Re: Referral to OIG Re: 18 U.S.C.

9

Section 1373, Apr. 8, 2016 (with attachments)

10

•

11
12

BX-0446, Signed by Kathleen T. Howard, Oct. 27, 2016
•

13
14

California Grant Award Document, Byrne JAG State, FY 2016, Award Number 2016-DJ-

Letter from Alan R. Hanson, Acting Assistant Attorney General, to Kathleen Howard,
Executive Director, California Board of State and Community Corrections, Apr. 21, 2017

•

Letter from Aaron R. Maguire, General Counsel, Board of State and Community

15

Corrections, to Tracey Trautman, Acting Director, Bureau of Justice Assistance, June 29,

16

2017

17

•

California Senate Bill 54, Oct. 5, 2017

18

•

Letter from Alan Hanson, Acting Assistant Attorney General, to Kathleen Howard,

19
20

Executive Director, California Board of State and Community Corrections, Nov. 1, 2017
•

21
22

Letter from Jon Adler, Director, Bureau of Justice Assistance, to Kathleen Howard,
Executive Director, California Board of State and Community Corrections, Jan. 24, 2018

•

Letter from Aaron R. Maguire, General Counsel, Board of State and Community

23

Corrections, to Chris Casto, Program Specialist, Bureau of Justice Assistance, Feb. 23,

24

2018

25

6. Identify all information that constitutes “information regarding . . . immigration status”

26

under 8 U.S.C. § 1373, including all types of information Defendants believe are included in this

27
28

10
Defs’ Response CA Interrogs.
No. 3:17-cv-04701-WHO

1

phrase, types of information not included, and state all facts and identify all documents forming

2

the basis of that position.

3
4

Response: Subject to the Objections to All Interrogatories set forth above, defendants
state the following:

5

Section 1373 protects, among other things, the sharing of “information regarding”

6

citizenship and immigration status. Congress’s use of “information regarding” in Section 1373(a)

7

was intended to broaden the scope of the information covered beyond an individual’s mere

8

technical status, as demonstrated by comparing Section 1373(a) to Section 1373(c), which uses

9

the different phrase “[immigration] status information.” 8 U.S.C. § 1373. Although Section 1373

10

does not cover all information regarding an individual, it covers information that federal immigra-

11

tion authorities need to determine and track the status of aliens in the United States and to take

12

custody of such persons as required.

13

The most common category of information covered by Section 1373 and sought by federal

14

immigration authorities is an alien’s date and time of release from custody. This is “information

15

regarding” immigration status because, among other reasons, it implicates the federal authority to

16

take custody pursuant to the removal statute, 8 U.S.C. § 1231. In other words, release informa-

17

tion bears directly on whether the alien will be able to remain in the United States. Moreover,

18

another provision of the INA, 8 U.S.C. § 1357(g)(10)(A), defines the phrase “immigration status”

19

to include whether “a particular alien is not lawfully present in the United States.” Whether an

20

alien has been released from state or local custody is highly relevant to the alien’s “lawful

21

presence” given that Congress has explicitly provided that unlawfully present aliens are not

22

subject to final orders of removal only when they are serving a criminal sentence in state or local

23

custody. See 8 U.S.C. § 1231(a)(4).

24

Certain of an alien’s personal and identifying information or contact information, such as

25

home address and work address, are also relevant to many immigration status issues, including

26

whether an alien admitted in a particular nonimmigrant status has remained in the United States

27

beyond their authorized period of admission, evidenced an intent not to abandon his or her

28

11
Defs’ Response CA Interrogs.
No. 3:17-cv-04701-WHO

1

foreign residence, or otherwise violated the terms and conditions of such admission (e.g., engaged

2

in unauthorized employment), see 8 U.S.C. § 1227(a)(1)(C), 8 C.F.R. § 214.1; whether the alien

3

has been granted work authorization as a benefit attached to a particular status or form of relief,

4

see 8 C.F.R. § 274a.12; whether the alien has kept federal immigration authorities informed of

5

any change of address as required under 8 U.S.C. § 1305; and whether an alien has accrued the

6

necessary continuous presence to be eligible for relief from removal, id. § 1229b(a)(1), (a)(2),

7

(b)(1)(A).

8

The above categories of information are those that defendants believe are operationally

9

important, clearly fall within the language of Section 1373, and are at issue in this action.

10

Depending on the situation, federal immigration authorities may need other categories of

11

information that would also fall within Section 1373.

12
13
14
15

7. Describe with specificity all steps that jurisdictions must take to comply with Section
1373.
Response: Subject to the Objections to All Interrogatories set forth above, defendants
state the following:

16

To comply with Section 1373, an award recipient must not prohibit, or in any way restrict,

17

any government entity or official from maintaining or from sending to, or receiving from, federal

18

immigration authorities information regarding the citizenship or immigration status, lawful or

19

unlawful, of any individual. If an award recipient has any law, policy, or practice that constitutes

20

such a prohibition or restriction, the jurisdiction must repeal or eliminate the law, policy, or

21

practice. An award recipient also must not prohibit, or in any way restrict, any government entity

22

from sending or receiving such information from federal immigration authorities, maintaining

23

such information, or exchanging such information with government entities. See also response to

24

Interrogatory 6 above.

25
26
27

8. State all facts and identify all Documents that support Defendants’ contention that each
of the Immigration Enforcement Requirements “were entirely rational,” ECF No. 77 at 18.
Objection: This interrogatory quotes defendants’ argument, in their motion to dismiss,

28

12
Defs’ Response CA Interrogs.
No. 3:17-cv-04701-WHO

1

personal information, and if so, state all facts and identify all Documents forming the basis for

2

that position.

3
4

Response: Subject to the Objections to All Interrogatories set forth above, defendants
state the following:

5

Defendants’ position is that Section 1373 requires California to allow state and local law

6

enforcement to respond to all inquiries from federal immigration authorities regarding certain of

7

an alien’s personal information. Section 1373 requires California to allow its employees to

8

exchange “information regarding the citizenship or immigration status, lawful or unlawful, of any

9

individual.” This statute, as part of the INA, protects the exchange of information – especially

10

with state and local law enforcement – that supports federal immigration authorities in performing

11

their duties under the INA, including the responsibilities to determine and track the status of

12

aliens in the United States and to take custody of such persons as required. Certain personal

13

information assists federal immigration authorities in safely taking custody of an individual if

14

appropriate under the INA. Certain personal information regarding aliens can be relevant to a

15

number of considerations under the INA, including whether the individual is “lawfully present in

16

the United States.” 8 U.S.C. § 1357(g)(10)(a). See also the response to Interrogatory 6 above.

17
18
19
20
21

19. Describe with specificity all actions that California must take to monitor compliance
with the JAG Section 1373 Requirement.
Response: Subject to the Objections to All Interrogatories set forth above, defendants
state the following:
OJP does not require specific actions with respect to monitoring of compliance with

22

Section 1373. Award recipients are expected to monitor their laws, policies, and procedures to

23

ensure that they are in compliance with all award terms and conditions. To the extent that an

24

award recipient has subrecipients, the award recipient is generally required to monitor its

25

subrecipients for compliance with the terms of the award. The requirements for subrecipient

26

monitoring can be found in 31 U.S.C. § 7502 and in Title 2 C.F.R. Part 200 (including, but not

27
28

18
Defs’ Response CA Interrogs.
No. 3:17-cv-04701-WHO