Attorney General Jeff Sessions pulled back on President Trump’s January executive order cracking down on “sanctuary cities” on Monday, releasing a memo that represents a significant retreat from the order’s original goal of punishing jurisdictions that limit collaboration between local authorities and federal immigration agents.
The memo narrowly defines sanctuary cities to “refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” Section 1373, which was signed into law in 1996, prohibits jurisdictions from preventing any government entity or local official from exchanging information on an individual’s immigration status with federal immigration agents. There’s no clear definition for sanctuary cities. Sessions’s latest memo, which comes after a federal court in California blocked the president’s threat against sanctuary cities, concedes that using Section 1373 as the administration’s definition is perhaps the most legally sound approach.
The problem for the administration’s immigration crackdown is that definition of “sanctuary city” exempts all but a few jurisdictions, as most found ways around that criteria years ago.
“If sanctuary just means violation of 1373, that law has been around since 1996 and for the most part… most major cities have dealt with this, most legal departments in major cities have dealt with this [and] have already written around 1373,” said Rick Su, a law professor at the University at Buffalo who has researched immigration and local government. Su noted that Section 1373 is a “don’t-tell policy,” so to work around it, some localities changed it to a “don’t-ask policy” or a “don’t-use-municipal-resources” policy. In doing so, it became difficult to differentiate who is and isn’t in compliance with Section 1373, since some localities simply don’t collect information on an individual’s immigration status in the first place and therefore don’t have anything to share with federal immigration officials.