MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS
THE ATTORNEY GENERAL
Implementation of Executive ,L er 13768,
«Enhancing Public Safety in tU Interior of the United States»
Federal law provides a process for foreign citizens to lawfully enter the country.
Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role
of federal agencies, including the Department of Justice, to enforce our immigration laws,
prosecute violations, and secure our borders.
The President has established immigration enforcement as a priority for this
Administration and, in furtherance of that priority, issued Executive Order 13768, «Enhancing
Public Safety in the Interior of the United States,» on January 25, 2017. The Executive Order
makes clear that «[i]t is the policy of the executive branch to ensure, to the fullest extent of the
law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.» To
accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and
to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to
comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal
grants, except as deemed necessary for law enforcement purposes by the Attorney
General or the Secretary. The Secretary has the authority to designate, in his discretion
and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 13 73 provides in part that state and local jurisdictions «may not prohibit, or in any way
restrict, any government entity or official from sending to, or receiving from, [federal
immigration officers] information regarding the citizenship or immigration status, lawful or
unlawful, of any individual.» 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of
the Executive Order, which is directed to the Attorney General and the Secretary of Homeland
Security, will be applied solely to federal grants administered by the Department of Justice or the
Department of Homeland Security, and not to other sources of federal funding. Section 9(a)
expressly requires enforcement «to the extent consistent with law,» and therefore does not call
for the imposition of grant conditions that would violate any applicable constitutional or
Memorandum for All Department Grant-Making Components
Subject: Implementation of Executive Order 13 768,
«Enhancing Public Safety in the Interior of the United States»
statutory limitation. Nor does the Executive Order purport to expand the existing statutory or
constitutional authority of the Attorney General and the Secretary of Homeland Security in any
respect. Indeed, apart from the Executive Order, the Department of Justice and the Department
of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that
they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland
Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that
willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or
Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the
Department of Justice will require jurisdictions applying for certain Department grants to certify
their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an
award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to
receive such awards. This certification requirement will apply to any existing grant administered
by the Office of Justice Programs and the Office of Community Oriented Policing Services that
expressly contains this certification condition and to future grants for which the Department is
statutorily authorized to impose such a condition. All grantees will receive notice of their
obligation to comply with section 1373. The Department will administer this certification
requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for
purposes of enforcing the Executive Order, the term «sanctuary jurisdiction» will refer only to
jurisdictions that «willfully refuse to comply with 8 U.S.C. 1373.» A jurisdiction that does not
willfully refuse to comply with section 1373 is not a «sanctuary jurisdiction» as that term is used
in section 9(a). While the Executive Order’s definition of «sanctuary jurisdiction» is narrow,
nothing in the Executive Order limits the Department’s ability to point out ways that state and
local jurisdictions are undermining our lawful system of immigration or to take enforcement
action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373.
Separate and apart from the Executive Order, statutes may authorize the Department to tailor
grants or to impose additional conditions on grantees to advance the Department’s law
enforcement priorities. Consistent with this authority, over the years, the Department has
tailored grants to focus on, among other things, homeland security, violent crime (including drug
and gang activity), and domestic violence. Going forward, the Department, where authorized,
may seek to tailor grants to promote a lawful system of immigration.