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Hogan Lovells Wins for Philadelphia Sanctuary Policies

15 November 2017

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Robert Snoddy

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+1 202 637 6826

Philadelphia, 15 November 2017 – Today, a team at Hogan Lovells on behalf of the City of Philadelphia won a sweeping ruling and a preliminary injunction from a federal judge, enjoining Attorney General Sessions from withholding the City's grant funding on account of its policies to protect immigrants. The Department of Justice has been threatening to defund localities like Philadelphia on account of their so-called "sanctuary city" policies for months. Today, a judge held that the Department cannot do that. The ruling is significant because it is the first time a city has won on the "Section 1373" issue – whether a locality can be forced to disclose the confidential information of immigrants in its jurisdiction to ICE. The City of Philadelphia protects the private information of immigrants who pose no criminal concern, because it views that confidentiality as critical to all of its residents' safety, health and well-being. Sara Solow, a Senior Associate in the Philadelphia Office, argued the preliminary injunction motion for the City, and with her on the briefs were partners Neal Katyal and Virginia Gibson, and associates Jasmeet Ahuja, Alex Bowerman, and Daniel Schuker.

The Department of Justice, a month before the application for JAG awards were due, announced three new conditions that Philadelphia would have to comply with under this formula grant program (which has been in existence since 2005, never with any issues). The Department required that the City (1) certify compliance with Section 1373 of Title 8 of the U.S. Code; (2) provide ICE with 48-hours-notice of the "scheduled release" of prisoners of interest; and (3) allow ICE unfettered access to interview inmates in Philadelphia's prison system.

Judge Baylson ruled that the last two conditions do not have a clearly discernible relationship to the JAG program. He also identified no statutory basis for the Attorney General's authority to impose those two (jail access and notification) conditions. The Chicago judge had similarly found that the AG lacked statutory authority to add those 2 conditions.

As to the first condition – and compliance Section 1373 – Judge Baylson ruled that whether or not it can be attached to the grant, the City is in substantial compliance with what this provision demands, and so the Department of Justice cannot withhold the City' congressionally-authorized funding on account of its desire that the City more actively enforce federal immigration law.

Today's ruling is important because it is the first decision nationwide to decide in favor of a city the Section 1373 issue.  To date, three other challenges to the new DOJ conditions have been brought by Chicago, California, and San Francisco.   Of those, only Philadelphia and Chicago have sought preliminary injunctions. In the Chicago case, the Judge ruled against Chicago on the Section 1373 issue – finding that the Department of Justice COULD impose that condition. Here, the Judge found that (1) the imposition of the Section 1373 condition was arbitrary and capricious; (2) may present "relatedness" problems under the Spending Clause; (3) and in any case, cannot be enforced upon Philadelphia to require that it disclose more about its undocumented population that it already does.

Section 1373 is the whole ball game in the sanctuary city debate – that is the provision that the Administration has most wanted to thrust upon cities since last year, to get them to change their local policies that protect immigrants' confidential information. Today, Philadelphia won on that issue. For the first time, nationwide. The City will NOT have to change its policies protecting the confidential information (regarding immigration status) of victims, witnesses, and people seeking City services, in order to retain its criminal justice funding from the federal government.

About Hogan Lovells

Hogan Lovells is a leading global legal practice providing business-oriented legal advice and high-quality service across its exceptional breadth of practices to clients around the world.

“Hogan Lovells” or the “firm” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP. For more information, see www.hoganlovells.com.

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