The second congressional question asked us to determine whether any SCAAP recipients have in effect a policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. § 1373). This statute, in effect, prohibits any interference in the free exchange of immigration-related information between state or local law enforcement and federal immigration authorities. Two key provisions of the statute are 8 U.S.C. § 1373 (a) and (b), which state:

• Notwithstanding any other provision of Federal, State, or local law, a 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, Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, or any individual.

• 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 doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

• Sending such information to, or requesting or receiving such information from, Immigration and Naturalization Service.

• Maintaining such information.

• Exchanging such information with any other Federal, State, or local government entity.⁵⁵

Views of ICE Officials

ICE officials objected to provisions of the administrative code of the City and County of San Francisco that limit the ability of local agencies and officers to communicate immigration information to ICE.

The City Administrative Code states “no department, agency, commission, officer or employee... shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or state statute, regulation, or court decision.” [Emphasis added.]

The Code also states “nothing in this Chapter shall prohibit, or be construed as prohibiting, a law enforcement officer from identifying or reporting any person pursuant to a state or federal law or regulation who is in custody after being booked for the alleged commission of a felony and is suspected of violating the civil provisions of the immigration laws.” Finally, the Code states that “nothing in this chapter shall preclude any... department, agency, commission, officer or employee from (a) reporting information to the INS regarding an individual who has been booked at any county jail facility, and who has been previously been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law; (b) cooperating with an INS request for information regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law; or (c) reporting information as required by federal or state statute, regulation or court decision, regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law.”⁵⁶

As mentioned in the preceding chapter, ICE officials considered these policies of the City and County of San Francisco as the “bare minimum” of cooperation. However, in light of the specific provisions requiring compliance with federal law, we cannot conclude that San Francisco’s policies are contrary to 8 U.S.C. § 1373.

Results of OIG Survey

We included a question in our survey asking about laws, regulations, or policies affecting each organization that might restrict the free exchange of immigration-related information between local law enforcement agencies and ICE. The 99 jurisdictions that responded to the questionnaire stated almost unanimously that there was no legislation or policy impeding the ability of local officers and agencies to communicate with ICE on immigration-enforcement matters. The detailed results are displayed in the following table.

The City and County of San Francisco gave a qualified “yes” in response to our queries about the existence of a local ordinance or a departmental policy limiting the ability of local law enforcement officers or agencies to exchange information with ICE relating to immigration enforcement. The response to the survey included a copy of the previously cited sections of the City Administrative Code and a police department General Order, which states that generally “a member [of the police department] shall not inquire into an individual’s immigration status or release or threaten to release information to the INS regarding an individual’s identity or immigration status.” However, the General Order makes exceptions that parallel those enumerated in the City Administrative Code.

Results of Field Work

In our interviews with local officials at the seven sites, we asked if their jurisdictions currently have in effect any statute, ordinance, executive order, or other legislation or official policy prohibiting local law enforcement agencies and officers from freely exchanging information with ICE on the citizenship or immigration status of individuals. Officials at four of the seven sites we visited replied unequivocally, “no,” while officials at the other three sites gave qualified answers.

• The State of Oregon has a state “sanctuary” statute, but the officials whom we interviewed believe it does not infringe on the exchange of information with ICE.
• Officials from the City of New York informed us there is no prohibition on exchanging information with ICE on individuals who have been arrested.

• Local officials stated the City of San Francisco Police Department’s policy is “consistent with its obligations under state and federal law, to adhere to the City of Refuge Ordinance. This ordinance prohibits the use of City resources to assist in the enforcement of federal immigration laws except in certain limited circumstances consistent with state and federal law.”

As discussed in the preceding chapter, our examination of official policies published by those jurisdictions confirmed the views expressed by local officials.

55. The statutory references to the Immigration and Naturalization Service now apply to ICE.

56. See Appendix VIII. The San Francisco City Administrative Code references to INS now apply to ICE.