DocketNumber: Case No. 17–cv–04701–WHO
Citation Numbers: 284 F. Supp. 3d 1015
Judges: Orrick
Filed Date: 3/5/2018
Status: Precedential
Modified Date: 7/25/2022
INTRODUCTION
The State of California has sued United States Attorney General Jefferson Beauregard Sessions, Acting Assistant Attorney General Alan B. Hanson, and the United States Department of Justice ("DOJ") (collectively, the federal government), seeking a declaration that Section 1373 of the Immigration and Nationalization Act (as interpreted by the federal government) violates the Constitution and an injunction enjoining the federal government from withholding, terminating, disbarring, or making any state entity or local jurisdiction ineligible for certain law enforcement grants. The State then moved for a preliminary injunction.
At some later date, this case may help define the contours of the State's broad constitutional police powers under the Tenth Amendment and the federal government's "broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. U.S. ,
The injury threatened is not irreparable. The amount of money at stake is small compared to the State's budget. Payment is delayed, for the moment. The DOJ appears to be using its regular administrative process to decide whether it will follow its initial inclinations. Given the number of open questions concerning the federal government's positions concerning the provisions of the statutes in question, the relatively minimal injury its delay has caused thus far, and the extraordinary nature of the relief sought, I deny the State's motion without prejudice. These issues will be better addressed on a more complete record after discovery on a motion for summary judgment.
BACKGROUND
I. CALIFORNIA's "SANCTUARY CITY" STATUTES
The State has enacted several laws affecting local and state criminal law enforcement concerning immigrants. Mot. at 5 (Dkt. No. 26). These statutes fit into two categories: (1) laws regarding how and in what manner local law enforcement can communicate and assist federal immigration officers (the TRUTH, TRUST, and Values Acts); and (2) statutes related to individuals' confidential information ( Penal Code sections 422.93, 679.10, and 679.11, Welfare and Institutions Code sections 827 *1020and 831, and Code of Civil Procedure section 155 ).
A. The TRUST, TRUTH and Values Acts
In 2013, the State enacted the TRUST Act,
In 2016, the State enacted the TRUTH Act.
Most recently, on October 5, 2017, the State passed the California Values Act (the "Values Act"),
The Values Act also amends the TRUST Act to clarify when local law enforcement officers have discretion to respond to DHS notification requests. See
The Values Act explicitly purports to comply with section 1373 through a savings clause. Section 7284(e) reads:
This section does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of an individual, or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to Sections 1373 and 1644 of title 8 of the United States Code.
On October 17, 2017, the CalDOJ received a request for a proposed statewide voter referendum regarding the Values Act. On January 17, 2018, the California secretary of state's office announced that the initiative failed to make the ballot. Supplemental RJN, Ex. A (Dkt. No. 79).
*1021B. Confidentiality Statutes
The State's confidentiality statutes purport to protect (1) the confidential information of victims and witnesses of crime,
California Penal Code section 422.93 also focuses on the confidential information of victims and witnesses of crime. It prohibits detainment of an individual who is a hate crime victim or witness in instances where the sole reason for the detainment is an "actual or suspected" immigration violation.
The State's laws regarding confidential information of juveniles dictate that juvenile court records and any information that the records contain are confidential except to statutorily designated parties.
II. THE GRANTS IN QUESTION
The State has been a recipient of both the Byrne JAG and COPS grants, but its future receipt of the grants is threatened by the federal government's interpretation of Section 1373.
A. The Byrne JAG Program
The Office of Justice Programs ("OJP") administers the Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG" Program). See
The current Byrne JAG Program is the result of the merging of two earlier programs: the Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants; and Local Law Enforcement Block Grants. See Pub. L. No. 109-162,
B. The Office of Community Oriented Policing Services
The federal government also announced that grants issued by the Office of Community Oriented Policing Services ("COPS") would also have a Section 1373 certification condition. Office of Community Oriented Policing Services' 2017 COPS Anti-Methamphetamine Program Application Guide, RJN, Ex. C at 2, Appx. D (Dkt. No. 27-1); Office of Community Oriented Policing Services' 2017 COPS Office Anti-Heroin Task Force Program Application Guide, RJN, Ex. D at 1-2, Appx. D (Dkt. No. 27-1). In FY 2017, access to COPS funds will have threshold eligibility requirement of certified compliance with Section 1373. COPS currently administers six programs, including the COPS Anti-Methamphetamine Program ("CAMP") and the Anti-Heroin-Task Force Program ("AHTF"). State law enforcement agencies use CAMP funds to investigate unlawful activities related to the manufacture and distribution of methamphetamine. COPS Fact Sheet, FY2017 COPS Anti-Methamphetamine Program, available at https://cops+. usdoj.gov/pdf/2017AwardDocs/camp/Fact_Sheet.pdf. AHTF funds are used to investigate illegal activities "related to the distribution of heroin or unlawful distribution of prescriptive opioids, or unlawful heroin and prescription opioid traffickers[.]" COPS Fact Sheet, FY2017 COPS Anti-Heroin Task Force Program, available at https://cops.usdoj.gov/pdf/2017 AwardDocs/ahtf/Fact_ Sheet.pdf. CAMP and AHTF are each authorized by the Consolidated Appropriations Act, 2017. H.R. 244, Pub. L. 115-31.
III. CALIFORNIA'S USE OF "JAG" AND "COPS" FUNDS
The State's Byrne JAG Program grants are distributed to its Board of State and Community Corrections ("BSCC"). BSCC has received $252.7 million from the Byrne JAG program since 2006. See Declaration of Mary Jolls ("Jolls Decl.") ¶ 7. For FY2017, the State expects approximately $28.3 million in JAG funding, with $17.7 million going to BSCC.
CalDOJ has received over $11 million in COPS funding to support law enforcement efforts around the State since it began. Caligiuri Decl. ¶ 4. For FY2017, CalDOJ applied for approximately $2.8 million in CAMP and AHTF grants. The CAMP grant would cover salaries, benefits, and other costs for a task force targeting enforcement against large-scale methamphetamine drug trafficking organizations. See
IV. SECTION 1373
Through the Immigration and Nationalization Act ("INA"),
(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.
(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.
U.S.C. 1373.
In the 2016 fiscal year ("FY16"), OJP identified Section 1373 as an applicable federal law for the Byrne JAG Program for the first time since the program's inception. See Decl. of Alan R. Hanson (Hanson Decl.) ¶ 3 (Dkt. No. 42-1). In receiving the award, the State accepted the Section 1373 compliance condition as it relates to the FY 2016 Byrne JAG Program grant. See California's FY 2016 Byrne JAG Program Award Document, Hanson Decl., Ex. A (Dkt. No. 42-1). In July 2017, OJP sought applications for the FY 2017 Byrne JAG Program. See Edward Byrne Memorial Justice Assistance Grant Program FY 2017 State Solicitation, Request for Judicial Notice ("RJN"), Ex. A (Dkt. No. 27-1). This solicitation informed prospective applicants that the FY 2017 award would be conditioned on all grantees certifying compliance with Section 1373. Id. at 31. The State's Attorney General must sign a standard affidavit, under penalty of perjury, affirming compliance with Section 1373 on behalf of the State and "any entity, agency, or official" as applicable to the "program or activity to be funded." Id. at Appx. II. Governor Edmund G. Brown must also adopt that certification under penalty of perjury. Id. at Appx. I.
California Department of Justice ("CalDOJ") submitted its applications with the executed certifications for AHTF and CAMP on July 7 and 10, respectively. Decl. of Christopher Caligiuri ("Caligiuri Decl.") ¶¶ 9, 15 (Dkt. No. 30). As part of their applications, CalDOJ included a supplemental statement with its COPS Section 1373 certifications. Id. It clarified that its certifications were made "as [ Section 1373 ] is lawfully interpreted," and reserved its rights to challenge "any unconstitutional enforcement of Section 1373." Id. The federal government has yet to respond to CalDOJ's applications. See id. ¶¶ 11, 17.
V. THE DISPUTE IN CALIFORNIA
On April 21, 2017, the federal government sent letters to nine jurisdictions that received the JAG award in 2016, including the State, demanding an official legal opinion that explained the jurisdictions' compliance with Section 1373. Department of *1024Justice, Letter to Kathleen Howard, Executive Director of the California Board of State and Community Corrections from Alan R. Hanson, Acting Assistant Attorney General for the Office of Justice Programs (April 21, 2017), RJN, Ex. I (Dkt. No. 27-2); Press Release, U.S. Dep't of Justice, Department of Justice Sends Letter to Nine Jurisdictions Requiring Proof of Compliance with
On November 1, 2017, the federal government sent a preliminary compliance assessment letter to California and alerted the State that three provisions of the Values Act may violate Section 1373. Department of Justice, Letter to Kathleen Howard, Executive Director of the California Board of State and Community Corrections from Alan R. Hanson, Acting Assistant Attorney General for the Office of Justice Programs (November 1, 2017), RJN, Ex. P (Dkt. No. 27-3). The highlighted provisions related to: (i) inquiries into an individual's immigration status, Cal. Gov't Code, § 7284.6(a)(1)(A), (ii) responses to notification requests,
On November 13, the State replied to the federal government's assessment letter. Hanson Decl. ¶ 14. OJP has not responded.
VI. OTHER RELATED LITIGATION
There have been two other lawsuits challenging the federal government's imposition of new conditions on the Byrne JAG Program grants. In addition to the Section 1373 certification condition, these lawsuits addressed the federal government's imposition of conditions requiring that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations (the "notice condition") and that local authorities provide immigration agents with access to local detention facilities (the "access condition").
In City of Chicago v. Sessions ,
*1025
In City of Philadelphia v. Sessions ,
The court did not rest its decision on this likely success on the merits however. It found that Philadelphia's laws substantially complied with the Byrne JAG Program conditions. Further, it held that the City of Philadelphia was able to demonstrate irreparable harm and that the balance of equities and the public interest weighed in its favor. Accordingly, it enjoined the federal government from denying the City of Philadelphia's Byrne JAG Program grant for FY 2017. The court's order is also on appeal. See City of Philadelphia v. Attorney General U.S. , No. 18-01103 (3d Cir. Jan. 16, 2018)
LEGAL STANDARD
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of *1026preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat'l Res. Def. Council, Inc. ,
DISCUSSION
I. JUSTICIABILITY
The federal government argues that the State's claims are not justiciable because the State cannot demonstrate the injury-in-fact necessary to establish standing and because its claims are not ripe for review. These principles of standing and ripeness go to whether this court has jurisdiction to hear the State's claims. I conclude that the State has demonstrated Article III standing to challenge the Section 1373 certification condition and that its claims are ripe for review.
The federal government challenges the justiciability of the State's claims on standing and ripeness grounds. It contends that because it has not withheld or threatened to withhold grant funding on any state statute except for the Values Act, the State lacks standing to seek a ruling on any other state statute. It also asserts that there is not a ripe controversy because the federal government has not made a final decision as to whether the Values Act violates Section 1373. (Its argument that the Values Act is not currently in effect and may never be in effect due to a proposed voter referendum is moot because the referendum failed due to lack of signatures on January 17, 2017.) I address standing and ripeness in turn.
A. Standing
Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to "Cases" and "Controversies." Massachusetts v. EPA ,
The State claims that it has standing to seek relief concerning the amended TRUST Act, TRUTH Act, and state confidentiality statutes because it has a well-founded fear of enforcement against its statutes and the requisite injury-in-fact. It contends that (1) the federal government has repeatedly highlighted the State's laws as generally not in compliance with Section 1373 ; (2) the federal government has sought to enforce Section 1373 against laws and policies similar to its confidentiality statutes; and (3) the federal government *1027expressly states that potentially noncompliant laws "may not be limited to" the Values Act and "reserv[es] the right to identify additional bases of potential violations of Section 1373." RJN, Ex. P.
The State asserts that, because the federal government's interpretation of Section 1373 and its certification requirement undermine the "exercise of its sovereign power to create and enforce a legal code," it suffers the requisite injury-in-fact to satisfy the standing requirement. It also argues that the federal government's actions threaten the loss of Byrne JAG Program funds promised under federal law as well as already awarded COPS funds, which is also sufficient to demonstrate injury-in-fact.
The federal government responds that there is no "live controversy" regarding whether any statutes other than the Values Act may comply with Section 1373 and no foreseeable injury-in-fact arising out of the federal government's view of these statutes. Additionally, it contends that any assumption that the federal government will withhold grant funds based on any statute other than the Values Act is purely speculative and therefore cannot be the basis for standing.
As I discuss below, the State has a well-founded fear of enforcement regarding the amended TRUST Act, TRUTH Act, and state confidentiality statutes under the federal government's Section 1373 interpretation and certification condition. Such enforcement would deprive it of federal grants to which it is otherwise entitled. The State has demonstrated Article III standing.
1. California Has Demonstrated a Well-founded Fear of Enforcement
In assessing whether enforcement action is likely, courts look to the past conduct of the government, as well as the government's statements and representations, to determine whether enforcement is likely or simply "chimerical." Compare Steffel v. Thompson ,
The federal government's contention that the State's fear of enforcement is speculative bears little weight. The federal government has actively sought to enforce Section 1373 against jurisdictions whose laws are undeniably similar to the State's confidentiality statutes. For example, the federal government seeks to enforce Section 1373 against Vermont's Model Fair and Impartial Policing Policy, in which officers are required to communicate that they will not report immigrants or immigration status of victims or witnesses to crimes. Letter to Vermont from Alan R.
*1028Hanson, Acting Assistant Attorney General for the OJP at the DOJ, Supplemental RJN, Exh. H (Dkt. No. 61). The requirements of Vermont's law closely mirror that of California's confidentiality statutes. The same is true of Philadelphia's policy regarding victims of crimes, against which the federal government has also sought to enforce Section 1373. See RJN, Exh. R, Letter to Philadelphia from Alan R. Hanson, Acting Assistant Attorney General for the OJP at the DOJ (Dkt. No. 27-3). And in its November letter to the State regarding Section 1373's relationship to the Values Act, the federal government indicated that it "reserves the right to identify additional bases of potential violations of Section 1373." RJN, Ex. P.
Members of the Executive Branch have made no secret of their hostility to the State's view of its obligations under Section 1373. Thomas Homan, the Acting Director of Immigration and Customs Enforcement, recently threatened criminal prosecution of political leaders in sanctuary jurisdictions. See Interview by Fox News with Thomas Homan, Acting Director, Immigration and Customs Enforcement (Jan. 2, 2018) (Stating "[w]e've got to start charging some of these politicians with crimes" in reference to leaders in "sanctuary cities"); see also Oversight of the United States Department of Homeland Security: Hearing Before the S. Comm. on the Judiciary (2018) (statement of Kirstjen Nielsen, United States Department of Homeland Security Director) (noting that DOJ is reviewing "what avenues might be available" to hold leaders accountable for "sanctuary city" policies)..On June 13, 2017, Acting Director Homan testified before Congress that jurisdictions that "have some sort of policy where they don't...allow [ICE] access to the jails" violate Section 1373. United States. Cong. House. Appropriations Committee on Home Security. June 13, 2017 (statement of Thomas Homan, Acting Director of the Immigration and Customs Enforcement), RJN, Ex. S at 35, 47-48 (Dkt. No. 27-3). Further, Attorney General Sessions has stated that "the State of California...[has] enacted statutes...designed to specifically prohibit or hinder ICE from enforcing immigration law by...denying requests by ICE officers and agents to enter prisons and jails to make arrests." Letter from Jefferson B. Sessions, Attorney General at the U.S. Dep't of Justice and John F. Kelly, then-Secretary of the U.S. Dep't of Homeland Security to the Honorable Tani G. Cantil-Sakauye, Chief Justice of the Supreme Court of California (March 29, 2017), RJN, Ex. T at 2 (Dkt. No. 27-3). The President himself has threatened to withdraw ICE agents from California because of the state's sanctuary policies. CNN, Trump Considers Pulling ICE Agents to Punish California , Youtube (Feb. 22, 2018), https://www.youtube.com/watch?v=1C3coXw2AI0.
Taken together, these facts establish that California has a well-founded fear of enforcement concerning its amended TRUST Act, TRUTH Act, and state confidentiality statutes. It has demonstrated that other states that have similar statutes and practices have faced enforcement and that the federal government has a contrary view of Section 1373's reach that would affect its relevant statutes. And it has established that the federal government has specifically identified the State as having other policies that purportedly violate Section 1373 that were not mentioned in the preliminary assessment letter. Accordingly, the State has shown that the "threat of enforcement [is] credible, not simply imaginary or speculative." Thomas,
2. California Has Demonstrated Injury-in-fact
The State asserts that because the federal government's interpretation of *1029Section 1373 and its certification requirement undermine the "exercise of its sovereign power to create and enforce a legal code," it suffers the requisite injury-in-fact to satisfy the standing requirement. It also argues that the federal government's actions threaten the loss of Byrne JAG Program funds promised under federal law as well as already awarded COPS funds, which is also sufficient to demonstrate injury-in-fact.
a. California's claims implicate a constitutional interest
The State has broad police powers reserved to it under the Constitution to determine its local policies and enforcement priorities pursuant to the Tenth Amendment. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez ,
These statutes reflect the State's local judgment of what policies and practices are most effective for maintaining public safety and community health. The State's claim is that the federal government's interpretation of Section 1373 and the compliance condition conflict with its police powers because the federal government seeks to compel it to change its policies in violation of the Tenth Amendment. See Virginia ex rel. Cuccinelli v. Sebelius ,
b. California is threatened with the loss of federal grants
The State claims that the federal government threatens to penalize it for failing to comply with the federal government's interpretation of Section 1373 by withholding the COPS grant and the Byrne JAG Program grant. The State previously received these grants in each year since their inception. This threatened injury meets Article III's standing requirements. A "loss of funds promised under federal law [ ] satisfies Article III's standing requirement." Organized Village of Kake v. U.S. Dep't of Agric. ,
In sum, the State has established both its well-founded fear of enforcement and a threatened injury that is "sufficiently real and imminent." It has Article III standing.
*1030B. Ripeness
The federal government asserts that the State's claims regarding the Values Act are not ripe for three reasons: (1) the Office of Justice Programs has not yet responded to the State's letter regarding the Values Act and has not determined administratively whether the Act violates Section 1373 ; (2) the Values Act is not currently in effect and, due to a referendum request, may never become effective; and (3) a ruling that the Values Act does not violate Section 1373 would not free the State from legal jeopardy unless all its laws, together with policies implementing those laws, are also consistent with Section 1373.
The State points out that those arguments focus on prudential, not constitutional, ripeness. The State contends that its claims are constitutionally ripe because (1) its response to the November 1 Letter effectively "articulated a concrete plan to violate the federal government's interpretation the law in question;" (2) the federal government made a "threat of prosecution" against the State in the letter and through public statements; and (3) the federal government has repeatedly sought to enforce Section 1373 over the past two months, including against the State. As to the prudential ripeness standards, the State believes that the issues in this case are fit for decision and that it will suffer hardship from delayed review.
A dispute is ripe in the constitutional sense if it "present[s] concrete legal issues, presented in actual cases, not abstractions." Colwell v. HHS ,
Ripeness and standing are closely related because they "originate from the same Article III limitation." Susan B. Anthony List v. Driehaus , --- U.S. ----,
In order to be constitutionally ripe, the State must demonstrate that the injury is "imminent." An injury is imminent "if the threatened injury is 'certainly impending,' or there is a " 'substantial risk" that the harm will occur.' " Susan B. Anthony List ,
The Ninth Circuit has previously declined to reach prudential ripeness when constitutional ripeness is satisfied. See Susan B. Anthony List ,
II. LIKELIHOOD OF SUCCESS ON THE MERITS
The State challenges the Section 1373 certification condition on four grounds: (1) the imposition of the condition is arbitrary and capricious in violation of the Administrative Procedure Act ("APA"); (2) the condition violates the Spending Clause because it is unrelated to the purpose of the JAG Byrne Program; (3) the State's statutes do not violate Section 1373 ; and (4) the Tenth Amendment does not allow for Section 1373 to "commandeer" the State's control over governmental employees and its residents' confidential personal information. The federal government responds that the Section 1373 condition is consistent with the APA and the spending clause; the State cannot demonstrate that none of its laws would violate the Section 1373 compliance condition; and the State cannot show that the Section 1373 compliance condition violates the Tenth Amendment.
A. APA Claim
The State argues that the Section 1373 certification condition is "arbitrary and capricious" under the APA. The federal government contends that the APA claim cannot go forward because it does not challenge "final agency action" given that the federal government has not made a final determination that the State violates the certification condition.
1. Imposition of the Certifying Condition Is Final Agency Action
For agency action to be final, the action must (1) "mark the consummation of the agency's decisionmaking process," meaning not "tentative or interlocutory" and (2) "be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear ,
The imposition of the certification condition on the Byrne JAG program meets this requirement. By imposing the certification condition, the federal government has articulated that certain funds, namely the COPS grants and the Byrne JAG Program grants, will require adherence to the certification condition. It has rendered its final word, satisfying the first prong of the Bennett test.
As to the second prong of the Bennett test, legal consequences clearly *1032flow from the imposition of the certification condition. Receipt of the grants is conditioned on certifying compliance with the federal government's interpretation of Section 1373. See Appalachian Power Co. v. EPA ,
2. It Is Too Soon To Determine Whether the Federal Government's Imposition of the Certifying Condition Is Arbitrary and Capricious
The APA requires that courts "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
The State argues that the identification of Section 1373 as an "applicable law" for the Byrne JAG Program grant is arbitrary and capricious in violation of the APA. It contends that the federal government has failed to identify a good reason for the policy change as required by the APA. The federal government responds that it has met its burden to demonstrate that its reasons for imposing the condition were rational.
In order to demonstrate these "rational" reasons, the federal government points only to a press release that it issued on July 25, 2017. See Press Release, U.S. Dep't of Justice, Backgrounder on Grant Requirements ("Backgrounder") (July 25, 2017), available at https://www.justice.gov/opa/ press-release/file/984346/download. The Backgrounder highlights three of the federal government's concerns as they pertain to Section 1373 compliance condition: (1) jurisdictions that refuse to cooperate with federal immigration authorities in information sharing about undocumented immigrants who commit crimes; (2) the use of federal funds for policies that frustrate federal immigration enforcement; and (3) jurisdictions that jeopardize the safety of their residents and undermine the Department's ability to protect the public and reduce crime and violence. City of Philadelphia v. Sessions ,
It is not clear, however, that the certifying condition has the requisite rational connection to the facts articulated in the Backgrounder. As the court in City of Philadelphia explains, the plain language of Section 1373 is too broad to achieve the information sharing goal listed in the first concern.
As to the federal government's second concern, the funds from the Byrne JAG Program are used for purposes unrelated to immigration enforcement, such as funding task forces focused on criminal drug enforcement, violent crime, and gang activity. Jolls Decl. ¶ 10. Consequently, withholding the grant funds because of the certification condition does not further the federal government's goal of prohibiting "use of federal funds for policies that frustrate federal immigration enforcement." Instead, the certification condition amounts to a way to target jurisdictions that do not comply with the federal government's interpretation of Section 1373.
Its third concern-jurisdictions that jeopardize the safety of their residents and undermine the Department's ability to protect the public and reduce crime and violence-is unsupported. The federal government presents no evidence that there is any link between increases in crime and violence and imposing the certification condition, especially given that Section 1373's language captures the immigration status of both criminal and non-criminal immigrants.
The State points to evidence that keeping the immigration status of undocumented immigrants confidential in certain circumstances improves the community's relationship with law enforcement, making immigrants, both documented and undocumented, more likely to report crimes. California Assembly Committee on Public Safety's analysis of AB 2792 ("the TRUTH Act"), RJN, Ex. F at 5 (Dkt. No. 27-2). It also highlights studies that concluded that first generation immigrants, including undocumented immigrants, were considerably less likely to commit violent acts than third-generation Americans. This study also revealed that living in neighborhoods of concentrated immigration was associated with lower violence. California Senate Committee on Public Safety's analysis of AB 4 ("the TRUST Act"), RJN, Ex. G at 8. Given the State's evidence that immigration status is not linked to pervasive criminal activity and violence and the federal government's lack of evidence supporting such an assertion, there does not appear to be rational connection between imposing the certification condition and "the Department's ability to protect the public and reduce crime and violence."
All that said, criminal law impacts the INA in a variety of ways, and, as discussed below, the relationship the government needs to add conditions to the receipt of grants does not need to be close. While the federal government fails to identify any goal set out in the Backgrounder that is furthered by the imposition of the certification condition, I am not prepared at the moment to find that the certification condition is arbitrary and capricious under the APA.
B. Spending Clause
In authorizing the Byrne JAG Program, Congress indicated its intent to require "applicant[s]" to "comply *1034with...all other applicable Federal laws." See
The State responds that, even at a low bar, the condition requiring compliance with Section 1373, an immigration statute, is unrelated to the funding of local "criminal justice" programs that JAG is intended to support. The State argues that Section 1373 has no nexus to the purpose of the implicated funds. To bolster its position, it points to City of Philadelphia, where the court found that "federal interest in enforcing immigration laws falls outside of the scope of the Byrne JAG program."
The State's reliance on the statement from City of Philadelphia ignores that the court also declared that "the Certification Condition appears to have some relationship with the JAG Program" and that "the 'relatedness issue' is a close call." Id. at 644,
C. Tenth Amendment and Section 1373
The State contends that the federal government's enforcement of Section 1373 against its statutes constitutes commandeering of the State's oversight of governmental employees and handling of its residents' confidential personal information. In its view, the relevant question is whether Section 1373 can be enforced against the state's statutes under the Tenth Amendment of the Constitution.
The federal government argues that it is not violating the Tenth Amendment by arguing that the Values Act does not comply with Section 1373. It provides three justifications for its position: (1) the dispute here does not involve a federal statutory mandate that directly regulates the State, but rather a condition on receipt of federal funds that the State and its subdivisions are free to accept or reject; (2) the purpose and effect of Section 1373 and the challenged grant conditions are to further the express goals of the INA, not to "commandeer" state officials; and (3) a mere requirement not to prohibit individuals from providing information would not violate the Tenth Amendment.
"The Federal Government may not compel the States to enact or administer a federal regulatory program." New York ,
*1035NFIB v. Sebelius ,
I agree with the courts in City of Philadelphia ,
There is an interpretation of Section 1373 that is consistent with the constitutional principles discussed in New York and Printz . See Printz ,
Section 1373 requires the sharing of information with the federal government "regarding immigration status." The meaning of that phrase is ambiguous. The federal government has not tried to define that phrase, and has not settled on a definition now, even though some of its officials are threatening criminal prosecution against political leaders whose understanding of the constitutional reach of Section 1373 differs from theirs. Under the INA, almost every bit of information about an individual could be relevant to status, particularly with respect to the right to asylum or as a defense to removal. The State reads the phrase narrowly, as requiring only information whether a person is a citizen of the US, present here in some other capacity, or undocumented, which is literally what "status" is. See Steinle v. City & Cnty. of San Francisco ,
At this time, only the State's obligation to communicate "personal information" and release dates of detainees is in dispute with respect to the Values Act. There is a nationwide injunction against the federal government regarding the effect of Section 1373 on other aspects of the Byrne grants. City of Chicago,
As I understand it, the disagreement here involves a subset of detained, undocumented people. The State's statutes do not impact the free flow of this information regarding those accused of hundreds of the most serious state crimes; it exempts those arrested or convicted of less serious, largely non-violent, offenses. The State's law enforcement strategy depends on keeping the trust of immigrant communities so that, among other things, they will *1036report crimes and rely on law enforcement, not criminal gangs, for protection. The state statutes also explicitly keep confidential information in juvenile records and regarding those people federal law also protects who are eligible for "U" and "T" visas. The government has not articulated its position regarding the confidentiality statutes in this litigation.
DOJ is apparently processing the COPS grant according to its usual administrative procedure and has yet to make a final pronouncement, although all indications are that it will find the State out of compliance with Section 1373 because of the personal information and release date provisions. The federal government has authority to set immigration policy. But where that policy collides with the State's constitutional police powers, it is important to understand the parameters of the federal government's interpretation of Section 1373. Does DOJ assert that the State's confidentiality statutes should not be respected? How does it square that with the INA statutes requiring confidentiality concerning the same subject matter? If personal information and release dates of detainees are encompassed within Section 1373's sweep as "regarding immigration status," what are the contours of DOJ's definition; does it include every fact about a detainee's life, or something else? How does that square with the language and intent regarding Section 1373 ? The State has been transparent about the purpose of its statutes, but the Values Act has just been implemented. What is the burden on a local enforcement agency to provide personal information and release dates for persons the agency knows are undocumented (recognizing the Values Act precludes officers from requesting information on status for less serious offenses, so this information may not be readily available unless it is determined that Section 1373 requires the agency to maintain and disclose status information)? How does the State comply with Section 1373 in providing information regarding immigration status?
Those are a few of the issues that should be clarified. I find that the record is not sufficient at this stage to determine that State has shown a likelihood of success on the merits.
III. IRREPARABLE HARM
The State asserts two ways in which it will suffer imminent and irreparable harm if I deny its motion for a preliminary injunction: (1) it will suffer a constitutional injury to its sovereignty if the fellow government follows its interpretation of Section 1373 and requires certification of such interpretation from applicants of the Byrne JAG Program funds; and (2) construing Section 1373 to invalidate its statutes would either cause harm to its communities, eroding trust between law enforcement and immigrant communities, or force the State to lose the Byrne JAG Program funding, which would leave law enforcement programs detrimentally impacted. The federal government argues that the State has failed to demonstrate immediate and irreparable harm because (1) the amount of potential funding at stake is not coercively high; and (2) the State's claim is belied because its long delay in bringing a legal challenge despite the certification requirement was required for FY 2016.
At the moment, the merits of the State's constitutional claim are uncertain and its injury is the delay of a $1 million grant. While delay in funding is potentially injurious, the amount is not so great that the State could not cover it while the litigation continues. At this point, the injury is not irreparable.
*1037IV. PUBLIC INTEREST AND BALANCE OF EQUITIES
The remaining two factors in the preliminary injunction calculus are considered together in litigation in where the federal government is a party. Nken v. Holder ,
On this record, the public interest would appear to be better served if the State did not have to choose between the Byrne JAG Program grant funds to assist its criminal law enforcement efforts and the health of its relationship with the immigrant community. But in light of the uncertainty of the merits and the current lack of irreparability of the injury, these factors do not tip the scale sufficiently to require injunctive relief.
CONCLUSION
The issues in this case will benefit from further development. It is unclear to me whether the State's or federal government's interpretation of Section 1373 and the Tenth Amendment will prevail on the personal information and release date issues; moreover, this lawsuit addresses a plethora of other issues besides those discrete ones. While the State to date has suffered an injury, it is only in the delay of $1 million of a federal grant that it previously received, not in the refusal to pay. I find that the State has not demonstrated that I should issue a preliminary injunction at this time. Its motion is DENIED.
IT IS SO ORDERED.
As a result of the nationwide injunction, this Order focuses on the certification condition, which has not been enjoined.
To the extent that I rely on the documents in this docket of which California requests judicial notice, its requests for judicial notice are GRANTED. See Dkt. Nos. 27, 61, 79. All other requests for judicial notice are DENIED AS MOOT.