GEORGE JEPSEN ATTORNEY GENERAL 55 ELM STREET PO. BOX 120 CT 06141?0120 Of?ce of the Attorney General State of Connecticut August 24, 2017 Jeff Sessions Tracey Trautman US. Attorney General Acting Director US. Department of Justice Bureau of Justice Assistance 950 Avenue Of?ce of Justice Programs Washington, DC 20530 US. Department of Justice 810 Seventh Street, NW Washington, DC 20531 VIA ELECTRONIC MAIL (Tracey.Trautman@usdoj . gov) Re: Edward Byrne Memorial Justice Assistance Grant Program FY 2017 State Solicitation Dear Attorney General Sessions and Acting Director Trautman: I am writing to seek clari?cation of certain new conditions imposed on applicants for grants under the US. Department of Justice (DOJ) Edward Byrne Memorial Justice Assistance Grant Program (JAG) as set forth in State Solicitation for ?scal year 2017 released July 25, 2017 (Solicitation). The State of Connecticut (State) intends to seek a grant under the JAG program. To that end, I am requesting clari?cation about (1) the new requirement that I, as the chief legal of?cer of the State, provide a certi?cation of compliance with 8 U.S.C. 1373 (Certi?cation Requirement); (2) the new grant condition that the State would be required to permit personnel of the US. Department of Homeland Security (DHS) to access any correctional or detention facility in order to meet with an alien (or individual believed to be an alien) and inquire as to his or her right to be or remain in the United States (Access Condition); and (3) the new grant condition that the State would be required to provide at least 48 hours' notice to DHS regarding the scheduled release date and time of an alien in the State's custody when DHS requests such notice in order to take custody of the alien (Notice Condition). The new Certi?cation Requirement provides that, as Attorney General, I would certify, subject to possible criminal prosecution or civil penalties, among other things: (6) As of the date of this certi?cation, neither the jurisdiction nor any entity, agency, or of?cial of the jurisdiction has in effect, purports to have in effect, or is subject to or bound by, any prohibition or any restriction that would apply to the ?program or activity" to be funded in whole or in part under the FY 2017 OJ Program (which, for the speci?c purpose of this paragraph 6, shall not be understood to include any such ?pro gram or activity" of any subrecipient at any tier), and that deals with either a government entity or ?of?cial sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373 or (2) a government entity or -agency sending to, requesting or receiving from, maintaining or exchanging information of the types (and with respect to the entities) described in 8 U.S.C. 1373(b). According to the Solicitation, the failure to provide this certi?cation will result in a denial of the JAG grant. It is my view that the State is in compliance with 8 U.S.C. 1373. You have previously received a letter from Karen K. Buffkin, General Counsel to Governor Malloy, dated January 20, 2017 (copy attached). In it, she discusses 54?192h of the Connecticut General Statutes, which establishes procedures for state and local law enforcement of?cers when they are presented with civil immigration detainers for persons in their custody. The letter demonstrates that 54-192h does not prohibit or in any way restrict the sending or receiving information regarding citizenship or immigration status of any individual to or from federal of?cers. I fully concur in this analysis. It is my understanding that DOJ has not responded to the letter. In addition, the State has issued guidance to state and local law enforcement of?cials on how to respond to requests from federal of?cers for assistance in federal immigration enforcement. A copy of that memorandum, entitled "State Guidance for Law Enforcement in Connecticut" issued by Governor Dannel P. Malloy, Commissioner Dora Schriro and Commissioner Scott Semple and dated August 22, 2017 (State Guidance), is attached. It is my view that nothing in the State Guidance prohibits or in any way restricts the sending or receiving information regarding citizenship or immigration status of any individual to or from federal of?cers and therefore the State Guidance is compliant with 1373. Instead, the Guidance simply articulates State policy with regard to requests for assistance in federal immigration enforcement based on what federal law does and does not require of state and local of?cers. However, based on available public information, it is unclear what is DOJ's understanding of the requirements of 8 U.S.C. 1373 and this Certification Requirement. The newly announced Access Condition and Notice Condition also are in some important ways vague and uncertain as to what may be required of grant recipients. This lack of clarity places grant applicants in the position of not knowing what they may be consenting to by accepting a grant award and potentially placing them at risk of taking illegal or unconstitutional actions. For example, the Access Condition does not specify the nature of the access to correctional and detention facilities that would be required. Similarly, the Notice Condition raises numerous practical and legal questions relating to the timing of the receipt of a notice and scheduled releases. In particular, the 48 hour notice requirement cannot itself lawfully compel continued detention when there is no longer another state law or constitutional basis to detain the person. Finally and most fundamentally, it is unclear what authority DOJ has for imposing on grant applicants the Certi?cation Requirement, the Access Condition or the Notice Condition. The legislation establishing the JAG program does not authorize DOJ to impose these conditions. Instead, it requires grant recipients to "comply with all provisions of this part and all other applicable Federal laws." 42 U.S.C. 3752(a)(5)(D). It is my view that 1373 does not come within the meaning of "all other applicable Federal laws." Moreover, there simply is no authority for the imposition of other new substantive conditions. Only Congress has such authority, and imposing such conditions in the absence of statutory authority violates the separations of powers doctrine. Finally, the new conditions themselves exceed the constitutional limits under the Spending Clause and the Tenth Amendment. Because of these serious legal uncertainties, I request clari?cation on the following questions: (1) Does DOJ disagree with my conclusion that the State Guidance complies with 8 U.S.C. 1373 such that it would not constitute a ?prohibition? or "restriction" within the meaning of the Certi?cation Requirement? If so, why? (2) What is the legal basis for imposing the Certi?cation Requirement? (3) What is the precise nature of access to correctional and detention facilities that would be required under the Access Condition? (4) Does the Notice Condition apply to circumstances in which the scheduled release date and time is less than 48 hours from the receipt of request for notice of such date and time? Similarly, does the Notice Condition apply to circumstances when the release of an inmate for whom the state has received a request for notice from DHS is ordered by a court or otherwise required by law or the Constitution to occur within less than 48 hours from the time the court order or other legal circumstance takes effect? If so, is it DOJ's view that the Notice Condition would require the State to delay the scheduled release until at least 48 hours from receipt of DHS's request? (5) What is the legal basis for imposing the Access Condition and the Notice Condition? It is my understanding that the certi?cations required by the Solicitation do not have to be submitted with the grant application which are due August 25, 2017, but can be submitted later but prior to any disbursement of any grant award. Nonetheless, I respectfully request a response to these questions no later than September 1, 201 allow for suf?cient time to evaluate your responses and to consider, if necessary, whet to ek appropriate legal remedies. Sin yyours GEORGE EPSEN ATTORNEY GENERAL iterate 5% $55 a~ {ii-E i5 ii?liitr-t ii CO trance or rs; 7,5,55,31,51,, C. tine: {130515 5,335? . VIA ELECTRONEC MAIL January 20, 2017 Tracey Tra utman Deputy Director Burea of Justice Assistance United States Department oflustice RE: Department oflustice Referral of Allegations of Potential Violations of 8 U.S.C. 1373 by Grant Recipients Dated September 23, 2106 (as corrected). Dear Deputy Director Trautman: The Department oflustice has required a grant recipient, in this case the State of Connecticut, to provide a legal opinion that such recipient is in compliance with the requirements of federal statute 8 U.S.C. 1373, more particularly subsections and of such act. Connecticut iaw compiles with the requirements of subsections and of Section 1373 as it does not prohibit or in any way restrict state or iocal authorities from sending to, receiving, exchanging or maintaining information from the Immigration and Naturalization Service (ENS) about the immigration status of an individuai. in fact, Connecticut?s statute affirmatively requires notification to INS when a civil immigration detainer has been requested. This opinion is in response to guidance from Department ofiustice thatthe grant recipient is required to provide compliance validation, including a legai opinion with supporting analysis of such compliance. Such guidance is provided in response to a memorandum of the Office of the Inspector Generai, dated September 23, 2016 titled, Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. 1373 by Grant Recipients. This opinion ietter serves as the requisite compliance validation. Section 8 U.S.C. 1373 specifically provides in subsection that, 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, iawful or unlawful, of any individual. Further, subsection provides: 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 1 21$ AV 2?le UK, {i6} if? FAX. {850} 'I?ilfi?iji??fi wwe-zgovetrioraztigov 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. The memorandum prepared by the Office of the Inspector General contains a citation to the legislative history of Section 1373. It states that Section 1373 was intended ?to give State and local officiai the authority to communicate with the Immigration and Naturalization Service (INS) . was] designed to prevent any State or local law, ordinance, executive order, policy, that prohibits or in any way restricts communication between State and local officials and the (Memorandum at p. 3, internai citations omitted) Connecticut law complies with 8 USC 1373 because it both specifically authorizes state and local law enforcement to communicate with INS and does not "prohibit or in any way restrict? the sending or receiving of information from INS regarding the immigration status of an individual. In 2013, the Connecticut Legislature adopted public act 13-155, codified as Section 54-192h of the Connecticut General Statutes, in order to establish required procedures for state and local law enforcement officers when presented with a civil immigration detainer for a person in custody. Prior to the adoption of this act Connecticut did not have a uniform policy for its state and local law enforcement on the handling of such matters. Section S4?192h of the Connecticut general statutes provides, For the purposes of this section: (1) "Civil immigration detainer" means a detainer request issued pursuant to 8 CFR 287.7; (2) "Convicted ofa felony" means that a-person has been convicted of a felony, as defined in section 53a-25, pursuant to a final judgment of guilt entered by a court in this state or in a court of competent jurisdiction within the United States upon a plea of guilty, a plea of nolo contendere ora finding of guilty by a jury orthe court notwithstanding any pending appeal or habeas corpus proceeding arising from such judgment; (3) "Federal immigration authority" means any officer, employee or other person otherwise paid by or acting as an agent ofUnited States Immigration and Customs Enforcement or any division thereof or any officer, employee or other person otherwise paid by or acting as an agent of the United States Department of Homeland Security who is charged with enforcement of the civil provisions of the Immigration and Nationality Act; and (4) "Law enforcement officer" means: (A) Each officer, employee or other person otherwise paid by or acting as an agent of the Department of Correction; (B) Each officer, employee or other person otherwise paid by or acting as an agent of a municipal police department; (C) Each officer, employee or other person otherwise paid by or acting as an agent of the Division of State Police within the Department of Emergency Services and Public Protection; and (D) Each judicial marshal and state marshal. No law enforcement officer who receives a civil immigration detainer with respect to an individual who is in the custody of the law enforcement officer shall detain such individual pursuant to such civil immigration detainer unless the law enforcement official determines that the individual: (1) Has been convicted ofa felony; (2) Is subject to pending criminal charges in this state where bond has not been posted; (3) Has an outstanding arrest warrant in this state; (4) Is identified as a known gang member in the database of the National Crime information Center or any similar database or is designated as a Security Risk Group member or a Security Risk Group Safety Threat member by the Department of Correction; (5) is identified as a possible match in the federal Terrorist Screening Database or similar database; (6) Is subject to a final order of deportation or removal issued by a federal immigration authority; or (7) Presents an unacceptable risk to public safety, as determined by the law enforcement officer. Upon determination by the law enforcement officer that such individual is to be detained or released, the law enforcement officer shall immediately notify United States immigration and Customs Enforcement. If the individual is to be detained, the law enforcement officer shall inform United States Immigration and Customs Enforcement that the individual will be held for a maximum of forty-eight hours, excluding Saturdays, Sundays and federal holidays. If United States immigration and Customs Enforcement fails to take custody of the individual within such forty-eight- hour period, the law enforcement officer shall release the individual. In no event shall an individual be detained for longer than such forty?eight-hour period solely on the basis of a civil immigration detainer. Subsection of Section 54-192h clearly requires a law enforcement officer, upon determining whether or to detain or release an individual, to immediately notify the United States Immigration and Customs Enforcement (ICE). The notification is required regardless of whether the individual is to be detained or released. The provisions of this subsection not only speci?cally authorize communication with it requires it. Further, the statute complies with Section 1373 because there is no provision of Connecticut?s statute that in any manner prohibits or restricts sending or receiving information from ICE regarding the immigration status of an individual. The obligations of the statute are unambiguous. 3 It is also important to note that in accordance with Connecticut law where ?The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itseif and its relationship to other statutes. if, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered.? Section 1-22, Connecticut Genera! Statutes. In this particular instance the intent ofthe statute is clear law enforcement officers are required to communicate with In such circumstances a review ofthe legislative history would not be . warranted; however, in this instance the legislative history sheds important light on the purpose behind the act and the intent of the Legislature in its adoption. The following excerpt from the transcript of the debate is illustrative of both the purpose and operation of public act 13-155: REP. REBIMBAS (70th): Thank you, Mr. Speaker. And just to further clarify, this amendment requires that a police department contact if there ?5 any type of civil immigration detainers, whether or not the police department decides to release or detain an individual. Is that correct? Through you, Mr. Speaker. - SPEAKER SHARKEY: Representative Holden-Win?eld. REP. (94th): Yes. ThrOugh you, Mr. Speaker. Upon detention of one of these individuals, that would be correct. Through you, Mr. Speaker. SPEAKER SHARKEY: Representative Rebimbas.. REP. REBIMBAS (70th): Thank you, Mr. Speaker. And I think that?s one of the most important parts of this amendment. Where the underlying bill was preventing a police department from making any notification to the appropriate department, in this particular occasion. When it comes to civil immigration detainers, what the amendment actually does is encourages that and mandates that they do contact so that they are properly notified when there is an individual that has a civil immiaration detainer. At that moment in time, they wili then be abie to inform the department of what type of action that they may or may not take. They may, at that time, indicate to the department that they have no interest in the person and then, ifthe department, under the factors that have been enumerated in this amendment, if there?s no pending charges or investigations and things of that nature, everything that?s enumerated here, then the police department, after 48 hours, would then reiease the person. But certainly, and again, for clarification purposes, if the factors in this amendment is found and the poiice department, then does have the ability to detain the individual past 48 hours. is that correct? Through you, Mr. Speaker. SPEAKER SHARKEY: Representative Holder-Winfield. REP. (94th): Through you, Mr. Speaker. That would be correct. REP. REBIIVIBAS (70th): Thank you, Mr. Speaker. Mr. Speaker, as indicated earlier, 1 do rise in support of this amendment. I think, again, we were void of having any type of guidelines. Without this amendment, any police department could have taken it upon their individual selves to make the decision of during a stop or if they were arresting someone, if they found out that there was a civil immigration detainers, that police department had the opportunity to say, well l'm not going to contact ICE. i prefer not to. There's no charges we're going to proceed here in the State of Connecticut. I know there's a civil immigration detainer. I'm going to unilaterally decide l'm not going to contact ICE. What this amendment actually does, is require that the police department contact ICE. ICE will then, in turn, let the police department know what their intentions are. At that moment in time, they can say we have no intent to follow up on this immigration detainer. Therefore, the police department could release them. if the police department wanted to detain them, they can only detain them for 48 hours, but again, it has that open line of communication. Because unfortunately, without an amendment like this or a guideline, what we have is some police departments not following up with on these immigration detainers and then others, unfortunately, holding people back, as aresult of the civil immigration detainer for days and/or weeks or more, waiting for potentially ICE to come, where, in fact, they may never come. (Session Transcript, Connecticut House of Representatives, May 22, 2013)(Emphasis added). The legislative history of Public Act 13-155 makes clear that the intent ofthe law was to provide uniform guidelines that Connecticut law enforcement officials were required to follow and specifically mandate communication with ICE. The only restrictions in the statute on law enforcement with respect to the handling of civil detainers are not restrictions encompassed by or enumerated in 8 1373. The Office of the inspector General?s original memorandum dated May 31, 2016 contained an incorrect citation of Connecticut law. It cited to an earlier version of House Bill 6659. House 6659 was amended on the floor of the House of Representatives, an amendment that removed any prohibition on law enforcement communication with ICE. The Inspector General on September 23, 2016 corrected its citation of Connecticut law, but specifically indicated that despite the removal of a prohibition on communication by law enforcement its analysis of Connecticut?s law had not changed. The Office of Inspector General?s analysis appears to result from a misreading of Connecticut?s law. The legislative history provided above ciearly supports the conclusion that the Inspector General?s analysis is incorrect. As Representative Rebimbas clearly stated in the debate on the bill, the underlying bill was preventing a police department from making any notification to the appropriate department, ICE in this particular occasion. When it comes to civil immigration detainers, what the amendment actually does is encourages that and mandates that they do contact so that they are properly noti?ed when there is an individual that has a civil immiaration detainer.? (Session Transcript, Connecticut House of Representatives, May 22, 2013)(Emphasis added). in conclusion, section 54-192h of the Connecticut General Statutes (Pubiic Act 13?55) specifically requires notification to nor does it prohibit or in any way restrict sending or receiving information from ENS, maintaining such information or exchanging information with federal, state or local law enforcement organizations. Connecticut law does not contradict or contravene 8 USC 1373. i trust this satisfies the compliance validation relative to Connecticut?s compliance with applicable federal law. Sincerely, {it Mgr/a a {cam 7? Karen K. Buffi