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Law360 (May 14, 2020, 8:01 PM EDT ) More than 30 local governments and nine public health experts urged a full Second Circuit on Thursday to reconsider its ruling on immigration restrictions on federal funding, arguing that keeping immigrants' trust is crucial, especially now during the coronavirus pandemic.
The cities, along with the International Municipal Lawyers Association and the Metropolitan Area Planning Council, told the circuit court that forcing local governments to comply with immigration restrictions being imposed by the U.S. Department of Justice on federal funding for policing undermines law enforcement.
If immigrants know that information they provide to local law enforcement will be turned over to federal immigration authorities, they might be unwilling to cooperate with local investigations, preventing crimes from being solved, the cities said in their amicus brief.
"These conditions conflicted with local policies, and local governments could not follow them without undermining their policing strategies," they said.
The cities also argued that Congress didn't give the DOJ legal authority to place immigration conditions on Edward Byrne Memorial Justice Assistance Grant funding when instituting the program.
"Congress intended JAG to empower local governments by deferring to local policy choices, not to allow the attorney general to coerce local governments into submission to federal priorities," the cities said.
The public health experts said in a separate amicus brief that immigrants and their families need to be able to use government-provided health services to help end the coronavirus pandemic without fearing that their information will be shared with federal immigration enforcement.
The experts said that to contain the virus, widespread testing and vaccination will need to be done by public health providers that need to be able to protect immigrants' private information.
The experts said that containing the spread of infectious diseases depends on testing and vaccination administered by public health providers. Immigrants need to feel safe using public health services so that they can be tested and vaccinated.
"The approach advanced by the federal government and endorsed by the panel decision will imperil public health by dissuading vulnerable people from seeking care — an outcome that inevitably would endanger the broader community," they said.
The Second Circuit split with other circuit courts in February by ruling that Congress gave the DOJ the authority to require states and cities to follow federal immigration laws in order to be eligible for the grant funding. But the Seventh, Ninth and Third circuits have upheld lower court orders preventing the DOJ from imposing immigration enforcement conditions on the grant funding.
Following the decision, New York and six other states asked the full circuit court to reconsider the panel's decision, drawing support from law professors who argued the decision threatens the separation of powers between Congress and the executive branch.
The health experts' attorney, Charles Rothfeld, told Law360 in a statement that the Justice Department's policy "raises practical as well as legal problems."
"The public's health requires that no one be discouraged from seeking necessary medical care, and that policy is especially important with a global pandemic raging," Rothfeld said.
A spokesperson for the city of Chicago told Law360 in a statement that the city is continuing its fight from the Seventh Circuit against the DOJ's immigration conditions.
"We hope that the full Second Circuit grants rehearing en banc and affirms the district court's injunction of the unlawful grant conditions," the spokesperson said.
The Office of the New York State Attorney General declined to comment, and the DOJ did not respond to a request for comment.
The cities are represented by the city attorneys of Chicago, Albuquerque, Chelsea, Boston, Boulder, Dayton, Burlington, Denver, Cambridge, Iowa City, Minneapolis, New Haven, Oakland, Los Angeles, Philadelphia, Madison, Pittsburgh, Portland, San José, Providence, Santa Clara, Rockford, Seattle, Somerville, Sacramento, San Francisco, Southfield and West Hollywood.
The U.S. Conference of Mayors is represented by of counsel John D. Reaves.
The International Municipal Lawyers Association is represented by of counsel Charles W. Thompson Jr. The Metropolitan Area Planning Council is represented by its general counsel Marjorie S. Weinberger.
The public health experts are represented by Cleland B. Welton II and Charles A. Rothfeld of Mayer Brown LLP.
The states are represented by the attorneys general of New York, Connecticut, Washington, New Jersey, Massachusetts, Virginia and Rhode Island. New York City is represented by Jamison Davies, Richard Paul Dearing and Devin Slack of the New York City Law Department.
The government is represented by Brad Hinshelwood, Mark B. Stern and Daniel Bentele Hahs Tenny of the Department of Justice's Civil Division.
The case is State of New York et al. v. U.S. Department of Justice, case number 19-267, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Suzanne Monyak and Alyssa Aquino. Editing by Jack Karp.
For a reprint of this article, please contact reprints@law360.com.
