Immigration Law

DOJ says it will prosecute local officials over immigration enforcement

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(Photo by Kevin Lamarque/REUTERS)

The Trump administration has directed federal prosecutors nationwide to investigate and potentially bring criminal charges against state and local officials who don’t cooperate with the president’s plans to carry out mass deportations, according to a document obtained by The Washington Post.

In a memo to Justice Department employees late Tuesday, acting deputy attorney general Emil Bove wrote that the supremacy clause of the Constitution and other legal authorities “require state and local actors to comply with the Executive Branch’s immigration enforcement initiatives.”

He ordered U.S. attorneys’ offices across the country to investigate any official who defies those efforts and consider prosecuting them on charges that, if they’re convicted, could send them to prison.

“Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands,” wrote Bove, a former federal prosecutor who spent recent years in private practice and was one of Donald Trump’s defense lawyers in his criminal cases.

A Justice Department spokesperson confirmed that the memo was sent out Tuesday night but otherwise declined to comment. In a separate memo Wednesday, the agency’s new leadership announced a different but also significant change in the civil rights division, halting any litigation or related actions in cases left over from the Biden administration. The freeze seems to jeopardize police reform agreements the Justice Department negotiated in recent months with cities including Minneapolis, Louisville and Memphis.

Bove’s directive responds to immigration executive orders Trump signed on his first day in office that aim to supercharge enforcement. The memo is likely to face fierce blowback from legal advocacy groups and officials in cities and states with “sanctuary” policies that frustrated the president’s mass deportation plans during his first term.

New Jersey Attorney General Matthew J. Platkin responded Wednesday by saying his state would continue to ensure that violent criminals are subject to immigration enforcement, while making sure that other immigrants feel comfortable reporting crimes without fear of being deported.

“My approach is based on well-settled New Jersey and federal law,” Platkin said in a statement. “And I will always—always—stand up for the rule of law.”

The memo referenced “the newly established Sanctuary Cities Enforcement Working Group,” which will work within the Justice Department to “take legal action” against state and local policies that clash with the administration’s immigration enforcement goals. At least two senior career officials have been transferred from the department’s national security division to that new office since Trump was sworn in.

The Justice Department directive also addresses a long-simmering conflict between Immigration and Customs Enforcement, the agency that detains and deports immigrants, and state and local law enforcement over federal deportation proceedings.

ICE prefers to arrest immigrants for possible deportation after police have booked them for an alleged crime, even if it is a minor offense such as shoplifting. Sanctuary policies endanger federal agents by requiring them to make arrests in communities, officials say, and expose otherwise law-abiding immigrants to arrests if they share homes with fugitives.

But over the years, local agencies and elected officials have faced criticism for alerting ICE about detained immigrants or holding those individuals longer than needed so that federal deportation agents can pick them up. Critics say local agencies should not help deport minor offenders or people whose criminal charges were dismissed. And they point out that immigration offenses are civil, not criminal.

Trump administration officials say deporting criminals will be a top priority for immigration agents, as it was for the Biden administration—with a key difference being that Trump has said he could remove immigrants who haven’t committed crimes. ICE says there are nearly 650,000 immigrants with varying criminal histories whom the agency is monitoring but has not detained. Some have faced serious criminal charges, others very minor ones. Including those people, the agency is monitoring more than 7 million individuals who are not in ICE custody.

The three-page Justice Department memo does not say that enforcement efforts will focus only on criminals. It does frame immigration enforcement as a national security imperative, saying transnational gangs, undocumented immigrants and the fentanyl crisis are endangering American cities. Studies show there is little to no evidence that immigrants, including those who are undocumented, commit more crime than U.S. citizens born in this country.

During Trump’s first administration, the Justice Department sought to withhold federal funding from sanctuary cities to pressure them to abandon their policies. Several cities, including Chicago, Philadelphia and Los Angeles, sued and won a string of court rulings declaring the restrictions illegal, though appeals courts issued conflicting decisions. Trump officials ultimately conditioned some Justice Department grants on cooperation with ICE.

The president issued a fresh order this week instructing agencies to ensure that sanctuary jurisdictions “do not receive access to federal funds.”

America First Legal, a conservative organization founded by longtime Trump immigration adviser Stephen Miller, said it put sanctuary cities “on notice” in December that they could face prosecution if they fail to detain immigrants for ICE. Miller is now Trump’s deputy chief of staff for policy, directing immigration enforcement and other key elements of the president’s agenda from the White House.

The letters from America First Legal went to 249 elected officials across the United States, including California Attorney General Rob Bonta, Los Angeles Police Chief Jim McDonnell and Platkin, the attorney general in New Jersey.

The nonprofit organization created a website to track what it considers sanctuary jurisdictions and published contact information for elected officials it says are violating federal law.

In an interview this week, Platkin said his state, like many other localities, works with ICE to facilitate the removal of serious criminals. He said a mass deportation campaign could lead to the removal of law-abiding business leaders, law enforcement personnel who do not have permanent legal status or people brought to the United States as children.

“One of the greatest lies has been that anyone is providing ‘sanctuary’ to murderers and rapists,” Platkin said. “To get to the kind of numbers of removals that he’s talking about, you would have to remove people who have done nothing wrong in this nation.”

While there is no single definition of a sanctuary jurisdiction, hundreds of communities have passed ordinances or laws to limit cooperation with ICE, according to the Immigrant Legal Resource Center, a San Francisco-based nonprofit that has tracked the issue for years. Some refuse to share records, let immigration agents into their jails or detain arrested immigrants after they have posted bail so that ICE can pick them up.

States such as Illinois, Oregon and California have passed sanctuary-style laws to protect immigrants, while other states such as Texas have banned sanctuary cities.

Many lawyers say it is legal for state and local officials to opt out of federal immigration enforcement, since requests to detain immigrants are not federal warrants signed by a judge. City officials in Chicago reaffirmed their refusal to cooperate with enforcement last week amid rumors of imminent immigration raids in that city.

Some law enforcement officers say working with ICE destabilizes their communities and makes immigrants afraid to report crimes. Police also worry that they could be breaking the law by jailing people for civil immigration offenses.

President Joe Biden had urged Congress, without success, to grant the 11 million undocumented immigrants in the United States a path to citizenship. Trump, however, has issued a string of executive orders since taking office Monday that could make them all vulnerable to deportation.

Trump has promised to launch “the largest domestic deportation operation in American history,” and he has directed agencies across the federal government, including the Defense Department, to make immigration enforcement a priority. The president and his surrogates have repeatedly threatened to punish sanctuary jurisdictions.

The memo Bove issued Tuesday also instructed federal law enforcement agencies, including the FBI and the Bureau of Prisons, to comb their files for any information that might help identify immigrants living illegally in the United States and to share it within 60 days.

Additionally, it detailed a partial redeployment of anti-terrorism and national security resources—including the FBI’s Joint Terrorism Task Forces—toward assisting “in the execution of President Trump’s immigration-related initiatives.”

Those task forces are made up of federal law enforcement agents and deputized state and local authorities. Some exist in cities where police are prohibited by local laws from participating in immigration enforcement.

Bove also announced that the department would roll back several Biden-era charging policies and reinstitute guidance first issued by then-Attorney General Jeff Sessions during Trump’s first administration. That guidance told prosecutors to pursue “the most serious, readily provable” charges in criminal cases and those that carry the most significant possible sentences.

Updated at 6:11 p.m. with rewrites throughout.


Perry Stein contributed to this report.