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MEMORANDUM OPINION NO~ 2025-01 TO: FROM: DATE: RE: I. ISSUE Scott Derickson, City Administrator Jason Millican, Police Chief McKenzie Granum, City Attorney JJ-f-- F ebruary 21, 2025 Oregon's Sanctuary Promise Law and Impacts to Local Law Enforcement Resulting from Changes in Federal Immigration Enforcement Policy You have requested a legal opinion regarding intensifying concerns about changes in federal immigration enforcement policy conflicting with restrictions placed on the City's police department becoming involved in such events or proceedings under Oregon's Sanctuary Promise Law. Specifically, you have asked: • What limitations exist under the current Oregon Sanctuary law related to local law enforcement involvement or collaboration with federal immigration enforcement? • To what extent can or should our local police officers be involved with ICE enforcement actions in Woodburn? • To what extent could the federal government lawfully direct local law enforcement to collaborate with ICE or directly perform federal immigration enforcement duties? II. BACKGROUND Several federal agencies control immigration law issues in the United States. The U.S. Department of Homeland Security (DHS) has three agencies that control immigration law; they are: Citizenship and Immigration Services (CIS); Immigration and Customs Enforcement (ICE); and Customs and Border Patrol (CBP). The federal agency in charge of enforcing, arresting and jailing individuals for immigration violations is the Immigration and Customs Enforcement (ICE) agency. The removal (deportation) of people who are in the United States without documentation and the associated administrative processes are civil in nature. For example, a person's unauthorized immigration status makes them removable, but absent additional factors ( e.g., having reentered the United States after being formally removed) unlawful presence does not currently constitute a criminal offense. ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 2 A. OREGON’S SANCTUARY PROMISE ACT In 1987, Oregon became the first state in the nation to pass a comprehensive statewide measure prohibiting state and local police and government from helping federal authorities with immigration enforcement, what we now refer to as a sanctuary law. In order to strengthen the existing sanctuary law, the Sanctuary Promise Act (HB 3265) was later passed in 2021. Under these two sanctuary measures, it is against Oregon law for state and local law enforcement or public agencies (including local government offices) in the State of Oregon to participate directly or indirectly in federal immigration enforcement, including acting as local immigration officers, sharing information about a person’s national origin, immigration or citizenship status with ICE agents, or holding/transferring an individual under an ICE civil detainer absent a qualifying judicial warrant. Additionally, Oregon public bodies and law enforcement agencies cannot generally inquire about an arrestee’s/detainee’s immigration status and individuals may not be investigated or interrogated by state or local law enforcement for immigration enforcement purposes. Finally, state or local law enforcement or public agencies must refuse and reject collaboration efforts with federal authorities for immigration enforcement purposes, including setting up traffic stops or traffic perimeters to enforce federal immigration laws/orders. B. LOCAL DELEGATION OF IMMIGRATION ENFORCEMENT DUTIES Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to certain criminal provisions of the INA that also fall under state and local jurisdictions; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable immigrants, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role. While immigration enforcement is the prerogative of the federal government, Congress has more recently defined circumstances under which the federal government may delegate immigration- enforcement authority to state and local police. The biggest federal delegation program, the 287(g) program, allows the Attorney General to grant immigration enforcement authority to state and local police departments that sign Memoranda of Understanding (MOU) with Immigration and Customs Enforcement (ICE). These MOUs allow state and local police to enforce civil immigration laws so long as they participate in ICE training, agree to ICE supervision, and abide by certain ICE rules. The Secure Communities Program (SCP) is another increasingly significant federal delegation program. Under SCP, ICE can issue “detainers” to state and local police authorizing them to keep certain people incarcerated while ICE decides whether to detain them itself. State and local jails do not have to use this authority, but they may, if ICE asks them to, incarcerate people who have not been and will not be charged with a crime. ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 3 Under Oregon’s Sanctuary Promise law, no Oregon state, county, or local law enforcement department would be permitted to participate in either of the programs described above. C. THE SUPREMECY CLAUSE OF THE U.S. CONSTITUTION Article 4 of the U.S Constitution contains the Supremacy Clause, which declares that federal laws “shall be the supreme Law of the Land.” The Supremacy Clause encompasses the doctrine of federal preemption, which states that federal law can supersede state law and policy in certain circumstances, such as when a congressional statute expressly withdraws certain powers from the states. Setting the rules on the entry and removal of immigrant aliens is unquestionably an exclusive federal power (referred to as a plenary power) and some would argue that uniformity in enforcing those rules is critical to the exercise of sovereign authority it should not be enforced by states). Accordingly, when it comes to immigration policy, state involvement is strictly limited to authority expressly delegated to the states through congressional action, not administrative directive (e.g. voluntary participation through 287(g) agreements). D. THE ANTI-COMMANDEERING DOCTRINE Just as the Supremacy Clause allows the federal government to preempt state laws, the Tenth Amendment prohibits the federal government from commanding states’ officers, or those of their political subdivisions, to administer or enforce federal regulatory programs. The language from the Tenth Amendment states, “(a)ll powers not granted to the federal government are reserved to the states or to the people, respectively”; it has been interpreted by the Supreme Court to create a sphere of state sovereignty into which the federal government may not easily intrude. One such power, particularly relevant here, is commonly known as the “police powers.” States generally retain the ability to determine their own policies related to the health, safety, welfare, property, and education of their citizens. The anti-commandeering rules have been reaffirmed by conservative scholars and judges since the 1990s. The federal courts have also rejected several federal laws attempting to commandeer state agencies’ enforcement resources, stating that “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”1 For example, in Printz v. United States, the Court rejected the federal government’s attempt to require local law enforcement officials to conduct background checks before citizens could purchase handguns. In an opinion authored by conservative Justice Antonin Scalia, the court held that the Constitution’s framers intended states to have a “residuary and inviolable sovereignty” that barred the federal government from “impress[ing] into its service … the police officers of the 50 States.”2 1 NY v. United States, 505 US 144 (1992). 2 521 US 898 (1997). ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 4 While the Supreme Court has never directly ruled on how the anti-commandeering doctrine works in the context of immigration detention, case law out of the Third Circuit (nonbinding in Oregon) does affirm that state and local officials are not required under federal law to detain noncitizens under civil immigration detainers: “[I]mmigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal. …Under the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government. Essentially, the federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.”3 E. PRESIDENT TRUMP’S RECENT EXECUTIVE ORDERS REGARDING IMMIGRATION On the first day of his second term in office, President Donald Trump issued ten executive orders and proclamations seeking to change the face of U.S. immigration law and policy. Most of the policy changes demanded in these executive actions take the form of instructions to federal departments or agencies. Because so much depends on implementation, it is impossible to legally scrutinize fully the impact and effect these orders might have on our City, however, the below summaries highlight two of the Executive Orders that focus on local jurisdictions and regulation. 1. Protecting the American People Against Invasion Order – EO 14159. Among stated purposes related to civil and criminal immigration enforcement priorities, this Executive Order includes threats of revoking all federal funding to states and localities deemed to be “sanctuary” jurisdictions. It also directs the Attorney General and the Secretary of Homeland Security to evaluate and undertake any other lawful actions, criminal or civil, that they deem warranted “based on any such jurisdiction’s practices that interfere with the enforcement of federal law.” It also includes an order to expand 287(g) agreements with state and local law enforcement to mobilize them as partners in enforcing federal immigration law, “to the maximum extent permitted by law.” 2. Securing Our Borders – EO 14165. Among other stated purposes related to securing the US border and deterring and preventing entry of illegal aliens into the United States, this Executive Order includes a policy of pursuing criminal charges against illegal aliens who violate the immigration laws, and against those who “facilitate their unlawful presence in the United States.” F. MEMORANDUM FROM ACTING DEPUTY US ATTORNEY GENERAL: INTERIM POLICY CHANGES REGARDING CHARGING, SENTENCING, AND IMMIGRATION ENFORCEMENT (JAN 21, 2025) Following President Trump’s issuance of the above-identified executive orders, the Acting Deputy Attorney General for the United States, Emil Bove, issued a department-wide 3 Galarza v. 745 F3d 634 (2014). ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 5 memorandum that further specified certain policy changes, priorities, and responsibilities of the DOJ as they relate to the administration's enforcement of immigration law. One significant feature of the DOJ memo that local governments will be monitoring closely is the DOJ’s message related to state and local cooperation and assistance with immigration enforcement: “The Supremacy Clause and other authorities require state and local actors to comply with the Executive Branch’s immigration initiatives. Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands and requests pursuant to, for example, the President’s extensive Article II authority with respect to foreign affairs and national security, the Immigration and Nationality Act, and the Alien Enemies Act. . . . laws and actions that threaten to impede Executive Branch immigration initiatives, including prohibiting disclosure of information to federal authorities engaged in immigration-enforcement activities, threaten public safety and national security. The Civil Division shall work with the newly established Sanctuary Cities Enforcement Working Group, within the Office of the Associate Attorney General, to identify state and local laws, policies, and activities that are inconsistent with Executive Branch immigration initiatives and, where appropriate, to take legal action to challenge such laws.” The DOJ memo is clearly suggesting here that sanctuary policies violate the provision of federal immigration law, specifically 8 U.S.C. §1373, which states that: “a … 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.” The DOJ memo also includes direction to prosecutors to consider charging local actors adhering to sanctuary policies and not complying with requests from federal authorities with violations of 8 U.S.C. § 1324 (“Bringing in and harboring certain aliens”). Finally, the memo concludes by identifying a new group, the Sanctuary Cities Enforcement Working Group, that is being tasked with identifying and, where appropriate, taking legal action to challenge "state and local laws, policies, and activities that are inconsistent with Executive Branch immigration initiatives." III. DISCUSSION Sanctuary laws exist at the state, county, and municipal levels across the country. They are not all the same of course, but they typically limit whether and how state or local authorities may cooperate with federal immigration enforcement. Importantly, sanctuary statutes require state and local officials not to act in certain ways—like in Oregon, the law prohibits gathering certain immigration-related information, detaining immigrants that would otherwise be released, and disclosing information about them to federal immigration authorities. ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 6 We clearly know that the new Trump administration is targeting “sanctuary” laws again, because they constitute a significant impediment to the administration’s plans for “mass deportation.” So, are sanctuary laws now illegal or unenforceable? Under current case law, the answer remains “no,” at least as to the kinds of non-cooperation provisions found in typical sanctuary laws like Oregon’s. In line with currently settled constitutional understanding, refusing to assist with a federal responsibility—immigration enforcement—remains a right under the 10th amendment. Additionally, as seems clear from a 2019 case challenging California's sanctuary law, “refusing to help is not the same as impeding [immigration enforcement efforts].”4 Again, the emphasis of current federal law under 8 U.S.C. §1373 is that states and localities have the option to volunteer or share immigration information with federal authorities, but not the requirement of assisting federal immigration authorities.5 So should federal immigration authorities “command” or “request” that our police officers or any other city official participate in immigration enforcement activities, including sharing information, they would not currently have authority to prosecute those individuals for refusing to comply. While the DOJ memo includes references to President Trump’s Article II authority and “other authorities,” the current constitutional analysis has not changed and no existing federal law currently prohibits the action—non-cooperation—the Trump administration is trying to curtail. Moreover, even if the administration were able to identify a particular legislatively imposed obligation—as perhaps it will try with the 1798 Alien Enemies Act—the constitutionality of that obligation will be doubtful. The anticommandeering doctrine simply leaves little or no room for Congress to require state and local officials to enforce federal law. It is important to note, however, that the DOJ’s memo does also include direction to prosecutors to consider charging violations of 8 U.S.C. § 1324 (“Bringing in and harboring certain aliens”).6 Of course, anyone who does “harbor” an illegal alien with the requisite state of mind—willfully or knowingly—can indeed be prosecuted, regardless of their official status, the provisions of this law have only been narrowly applied in the past. Just last year in United States v. Hansen, the Supreme Court read the “encourage or induce” provision very narrowly, to prohibit only “the purposeful solicitation and facilitation of specific acts known to violate federal law.”7 Harboring prosecutions have historically only involved affirmative conduct that helps the undocumented person stay in the country. Sanctuary policies, in contrast, prohibit action. Importantly, no case yet suggests that state and local officials should fear prosecution for simply doing what their sanctuary laws require. 4 US v. California, 921 F3d 865 (9th Cir 2019). 5 See also City of NY v. US, 179 F3d 29 (2nd Cir 1999) 6 As the U.S. Court of Appeals for the Second Circuit noted: Harboring requires “conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.” US v. Kim, 193 F3d 567 (2nd Cir 1999). 7 599 US 762 (2023). ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 7 Finally, a remaining topic of local government concern is the potential defunding of sanctuary cities that President Trump threatens in his executive orders. As President Trump did during his first term, he intends to use the DOJ, and perhaps other federal agencies, to place conditions on federal grant acceptance that will require local government cooperation with federal immigration enforcement.8 While this issue was extensively litigated during the first Trump administration, and the Courts found that threatened or actual defunding was unconstitutional,9 state and local governments may once again need to be prepared to challenge similar rules, restrictions, and threats. IV. CONCLUSION After a month into the new Trump administration, most local governments with sanctuary policies are still trying to anticipate and prepare for what the full implementation of Trump's executive orders on immigration enforcement could look like at the local level. But some larger state and municipal governments are proactively challenging these new executive orders and resulting policies. Our office will continue to closely monitor such litigation and report on developments as they occur. With Oregon’s sanctuary policies being state-level mandates, it is likely that should a future challenge to the constitutionality of that law occur, it will be handled at the state level through the Oregon Attorney General’s Office. Since the Oregon Department of Justice already provides toolkits and guidelines on the sanctuary law requirements for local governments and agencies, it is advisable that the City continue to follow that guidance unless or until congress passes a law directly opposed to sanctuary policies or judicial opinions on sanctuary laws change. To aid in answering particular administrative and operational questions related to our current municipal police operations, attached is an FAQ document that covers law enforcement obligations and continued prohibitions under the state’s sanctuary law (Appendix A secondary FAQ document is also attached that provides more generalized advice for the City's non-law enforcement personnel (Appendix 8 In 2017, the Department of Justice (DOJ) announced that it would withhold federal grants from state and local jurisdictions applying to the FY2017 Byrne Justice Assistance Grant (JAG) if jurisdictions failed to cooperate with Immigration and Customs Enforcement (ICE) in deporting members of immigrant communities. 9 Jurisdictions across the country challenged the DOJ conditions in court. Overwhelmingly, Federal courts across the country have found that the DOJ does not have the legal authority to add these kinds of strings to JAG grants; they amount to coercive conditions, are beyond congressional authorization, and are not germane to the spending authorized. ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 8 APPENDIX A FAQs Regarding Municipal Police Operations & ICE Q: Under President Trump's new executive orders, can the police department now have an MOU, 287(g) agreement, or informal agreement to share information or cooperate with ICE on immigration enforcement efforts? A: No; Oregon Sanctuary laws still restrict law enforcement agencies from entering into new formal or informal agreements with federal immigration authorities to exercise federal immigration enforcement powers, detain a person, or share information about individuals with immigration authorities. (ORS 181A.820(3) and 181A.823(1)-(2), 181A.829) Q: Would Woodburn police officers be compelled to obey a directive or command from federal ICE agents to enforce federal immigration laws? A: No; as a local subdivision of the state, Woodburn is protected under the 10th Amendment from commandeering by the federal government to carry out or enforce federal laws and/or programs, including immigration enforcement. Q: How should the police department respond to a request for information from ICE? A: The general state rule is that information requests from federal agencies that relate to federal immigration enforcement must be declined. However, information sharing may be permitted under two exceptions: there is a judicial subpoena for the information/documents; information is available to ICE under the same terms and conditions the information is available to the general public (i.e. if the information would otherwise be disclosed through the Oregon public records process). Q: When can officers arrest a person for alleged violation(s) of federal immigration statutes? A: Our police officers can still arrest an individual wanted under certain federal criminal immigration statutes when there is a warrant signed by a federal judge. Officers cannot arrest or detain an individual subject to an ICE administrative detainer/warrant. The State DOJ's law enforcement guidance includes samples of both types of warrants, which should be reviewed by officers unfamiliar with the different types of forms. Officers may also contact the City Attorney's office or the Police Chief should assistance be needed in reviewing the validity of any warrant. Q: What should the City do if we receive a request from ICE that relates to immigration enforcement? A: ORS 181A.826(3) requires public bodies that receive a communication or request for information, access, or assistance from a federal agency, other than a judicial subpoena, that relates to immigration enforcement to: decline the request; document the details; report the request to the agency director or similar management personnel (e.g. Police Chief or City Administrator); and Report the details and the agency's response to the Criminal Justice Commission. ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 9 Q: How should officers respond to a call for service that involves ICE agents? A: Generally, officers should still respond to the call like they otherwise would and assess the situation for life safety concerns and violations of state law. Officers should not directly involve themselves with the actions/conduct of ICE agents that may otherwise be present, meaning they should not aid nor obstruct those agents' activities. As mentioned previously, Woodburn police officers should also not arrest or detain anyone subject solely to an ICE warrant. ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 10 APPENDIX B FAQs Regarding General City Operations & ICE Q: What does Oregon's Sanctuary Law require of City employees? A: Oregon's Sanctuary law prohibits public agencies, including the City of Woodburn, from participating directly or indirectly in federal immigration enforcement, unless directed under a judicial warrant. Oregon's sanctuary laws are codified under ORS 180.805, 180.810, and 181A.820-829. The laws are very specific and grant certain exceptions depending on the government agency involved. In general, the law dictates that the City refuse and reject collaboration with federal authorities for immigration enforcement purposes and more importantly that we provide our services to the public without asking about or gathering information about an individual's immigration status. Q: How does an employee identify an ICE Agent? A: ICE Agents may appear in uniform and be easily identifiable. Other times they may come dressed in plain clothes. If an unknown person comes into your work area asking immigration related questions or requesting information or records, employees should ask the person to identify themselves and immediately contact their supervisor before providing any information. Q: What should a City employee do if ICE agents show up at City Hall or another City facility, park, or public space? A: ICE Agents may have access to public areas of City buildings and facilities in the same manner as other members of the public. If ICE Agents do show up to a City building, employees should notify their supervisor who can contact the City Attorney's office for assistance. ICE Agents should not be granted access to non-public areas of City facilities (e.g. private office spaces, any area where a badge is required, etc.) unless they have presented a judicial warrant issued by a U.S. District Court and signed by a judge. If they have a judicial warrant, ask to make a copy of the warrant and call the City Attorney's Office; within the parameters of a judicial warrant they may enter non-public areas of a building/facility. (Note that an administrative warrant—which says “Department of Homeland Security” at the top—is insufficient to allow ICE agents access to private areas). Q: What should a City employee do if they receive communications from an ICE Agent or a request for information from an ICE Agent? A: Employees should not respond to an ICE Agent's communications while in their capacity as a City employee without first contacting and receiving guidance from the City Attorney's office. In general, all requests for information should be submitted as a formal records request through the City Recorder's office. Q: What should a City employee do if they are approached by an ICE Agent at work who begins asking them questions? A: If possible, notify your supervisor and direct the ICE Agent to the supervisor first. You may also request to call the City Attorney's office for assistance before answering any ---PAGE BREAK--- Memorandum Opinion No. 2025-01 February 21, 2025 Page 11 questions. The next step in any communication should then be to verify the agent's identity (name, badge number, agency) and verify the purpose of their inquiry. In general, an employee may answer questions and provide information to ICE under the same terms and conditions the information is available to the general public. In answering any questions, remember to remain calm and polite. Do not argue with the agent and do not lie. Once the encounter is over, employees should document what occurred and provide that information to their supervisor. Q: What should a City employee do if ICE Agent(s) show up to arrest someone at a City building/facility? A: If ICE Agents present a judicial warrant, they may begin a search within the subject building and take custody of the person subject to the warrant. If this occurs, remain calm and contact the City Attorney's office. Do not argue with agents and do not interfere with the agents, including hiding someone you know or suspect is an undocumented immigrant. It is a federal crime to knowingly act to hide, harbor or shield an undocumented immigrant from ICE. Additionally, if you interfere with ICE's enforcement actions, such as blocking them from arresting someone, you could be charged with obstructing justice or related offenses.