New Jersey’s Sanctuary Directive Upheld in Federal Court

By Shari Rendall | FAIR Take | August 2020

A federal judge recently ruled that New Jersey Attorney General (AG) Gurbir Grewal’s sanctuary directive to limit information that state officials shared with federal immigration officers did not violate federal law.  Judge Freda Wolfson, appointed to the bench by former President George H.W. Bush, dismissed the lawsuit’s federal claims but did not address whether the directive violated state law.

Cape May County Sheriff Robert Nolan filed the lawsuit last October against AG Grewal stating that the sanctuary directive, which forced him to end his 287(g) agreement, violated state and federal law. He alleged the directive violated the U.S. Constitution’s Supremacy Clause and that it was preempted by federal law. The 287(g) program creates a partnership between U.S. Immigration and Customs Enforcement (ICE) and state and local law enforcement officials to remove dangerous criminal aliens from the community by deputizing officers to perform limited immigration enforcement.

The sanctuary directive which was issued in November, 2018, prohibited law enforcement from entering into new 287(g) agreements. However, it allowed existing agreements to remain in effect for the remainder of the agreement.  If the law enforcement officer wanted to renew the existing 287(g) agreement, the officer would have to submit justification for the agreement to the state and obtain state approval.

Sheriff Nolan renewed his 287(g) agreement just prior to when the sanctuary directive took effect in March, 2019.  In response to his actions, AG Grewal revised the new sanctuary directive forbidding any 287(g) agreements in the state at all and directing Sheriff Nolan to end his participation in the 287(g) program.  Sheriff Nolan filed suit against AG Grewal on October 15, 2019.

In her decision to dismiss the federal claims, Judge Wolfson held that 8 USC §1373(a) and §1644 apply only to information specifically regarding an individual’s immigration or citizenship status and that these statutes do not expressly preempt the directive.  Further, she found the directive did not stand in the way of the federal government carrying out its objective under the Immigration and Nationality Act. According to Judge Wolfson, the directive was “a legitimate exercise of the State’s police powers and regulation of its law enforcement resources.” Finally, she concluded that the directive’s prohibition on 287(g) agreements does not frustrate federal immigration enforcement because 287(g) agreements are voluntary and that New Jersey was exercising its right to regulate and control its law enforcement agencies.

AG Grewal praised the ruling saying, “Today, the court recognized what we have said all along: New Jersey has the authority to draw a clear, bright line between the work of state law enforcement officers and federal civil immigration officers. This line is more important than ever, as we work hard every day to build and restore trust between New Jersey’s police officers and historically marginalized communities.”

“This ruling actually violates the rights of every sheriff in the state to voluntarily assist fellow law-enforcement officers in keeping their communities safe,” stated Nolan. “Federal law specifically granted these rights to be used at the discretion of law enforcement executives to be utilized in the best interest for the communities that they protect. This ruling is shameful.”

Sheriff Nolan is reviewing the decision and will decide whether to appeal to the Third Circuit Court of Appeals.  He has 30 days from the date Judge Wolfson entered her order to decide whether to appeal.