Update: After this story was first posted, City officials released the full certification letter sent to the Department of Justice. You can read that letter here.
By Austin Nolen
Philadelphia officials today announced their plans for retaining federal law enforcement grant money while remaining a sanctuary city, steering between the demands of the Trump Department of Justice and local immigration activists.
In 2016, the Obama administration required several local governments that received federal grants for police, including Philadelphia, to demonstrate their compliance with a part of federal immigration law.
That law, signed by President Clinton in 1996 and codified as 8 U.S.C. § 1373, made it illegal for government agencies to prohibit their employees from communicating to immigration authorities about a person’s immigration status.
After the Trump administration entered power earlier this year, the Department of Justice stepped up its enforcement of this requirement by sending a letter to nine cities threatening to cut off grants unless local officials proved that they were following section 1373.
In that letter, the Assistant Attorney General for the Office of Justice Programs, who oversees the DOJ’s grant-making program, warned that cities that did not certify their compliance by June 30th would risk losing their grants.
In response, city officials demonstrated how they claim they are complying with the law. However, these claims may also bring the city into conflict with immigrant organizations.
According to City Solicitor Sozi Tulante, the City’s policy is to prohibit all city employees from asking any questions about immigration status, except for law enforcement, who can only ask about status when relevant for a non-immigration crime, such as welfare fraud.
If information unrelated to a crime is accidentally collected, the City still keeps it confidential. Information related to crimes can be shared by employees. “We can’t imagine that the federal government would have any interest in the status of someone who is law abiding,” Tulante said.
Officials also pointed to their data-sharing with immigration officials through law enforcement databases. Two data sets in particular can be used to identify immigrants in City custody.
Whenever Philadelphia police make an arrest, they take fingerprints and send them to the FBI to confirm the identity of the arrestee. In 2008, the FBI signed an agreement with Homeland Security that allowed immigration agents to check those fingerprints against DHS databases to identify immigrants as part of the Secure Communities program.
Immigration and Customs Enforcement agents also have limited access to the City’s Preliminary Arraignment Reporting System, which reports the names and charges of people arrested by Philadelphia police.
Tulante said that “by using these resources, we do comply with section 1373.” But immigrant activists are highly critical of these same databases.
Activist group Juntos, for instance, has criticized ICE access to the PARS system, claiming that “because of data sharing through programs… ICE still has access to… information through the police database and we are still fighting to get many people out of detention.”
Likewise, the Secure Communities program generated substantial activism and litigation. In 2014, then-DHS Secretary Jeh Johnson ended the program and replaced it with a more targeted approach called Priority Enforcement.
In 2017, President Trump reinstated the Secure Communities program in an executive order. These policies and others led Juntos to declare that “Philly is not a sanctuary city.”
Nevertheless, Mayor Kenney defended Philadelphia’s claim to be a sanctuary city, a term with no legal definition. “The advocates recognize that we respect and protect all residents, documented and undocumented and citizens,” he claimed.
“We want to make people understand what our policies are,” Tulante said, “because some people think that ‘sanctuary city’ means kicking ICE out.”
The City has a separate policy on immigration detainers that does prohibit employees from informing federal authorities about immigrants’ release dates from city custody, but according to Tulante, “1373 is really focused only on communications about status.”
According to officials, there is no set timeline for the Department of Justice to review the City’s arguments and make a decision.