Cnty. of Ocean v. Grewal, Civil Action No. 19-18083 (FLW)

475 F.Supp.3d 355

COUNTY OF OCEAN, et al., Plaintiffs,

v.Gubrir S. GREWAL, in his official Capacity as Attorney General of the State of New Jersey, et al., Defendants.

Robert A. Nolan, in his official capacity as Cape May County Sheriff, et al., Plaintiffs,

v.Gubrir S. Grewal, in his official Capacity as Attorney General of the State of New Jersey, et al., Defendants.

Civil Action No. 19-18083 (FLW)

United States District Court, D. New Jersey.

Signed July 29, 2020

Christopher Ali Khatami, Berry Sahradnik Kotzas & Benson, Toms River, NJ, for Plaintiffs Board of Chosen Freeholders of the County of Ocean, County of Ocean.

Michael L. Testa, Jr., Basile & Testa, Vineland, NJ, for Plaintiff Robert A. Nolan.

Jeffrey Ryan Lindsay, Department of Law, Cape May Court House, NJ, for Plaintiff County of Cape May.

Daniel Michael Vannella, Michael Ralph Sarno, Office of the Attorney General of New Jersey, Trenton, NJ, for Defendants.

WOLFSON, Chief Judge:

On November 29, 2018, Gubrir S. Grewal ("Attorney General Grewal"), in his capacity as Attorney General for the State of New Jersey, issued Attorney General Law Enforcement Directive No. 2018-6, known as the Immigrant Trust Directive, to limit the ability of local, county, and state law enforcement agencies from assisting the federal government in the enforcement of federal civil immigration law.¹ In this consolidated action against Attorney General Grewal, the State of New Jersey, Office of the Attorney General, and the Department of Law and Public Safety, Division of Criminal Justice (collectively "Defendants"), plaintiffs, the County of Ocean, the Board of Chosen Freeholders of the County of Ocean (collectively, the "Ocean County Plaintiffs"), Robert A. Nolan, in his capacity as Cape May County Sheriff, and the County of Cape May (the "Cape May County Plaintiffs") (collectively, "Plaintiffs"), seek a declaration that the Immigrant Trust Directive is preempted by the United States Constitution and violates various state constitutional and statutory provisions. Presently before the Court are (1) Defendants’ Motion to Dismiss the Complaints pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (ECF No. 14); and (2) a Motion for Preliminary Injunction filed by the Cape May County Plaintiffs, (ECF No. 13). For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED as to Plaintiffs’ federal claims, and those claims are dismissed. I do not reach Defendants’ Motion as to Plaintiffs’ state law claims, because I decline to exercise supplemental jurisdiction over those claims. Defendants may renew their Motion in state court should these plaintiffs choose to proceed in that forum pursuant to 28 U.S.C. § 1367(d). Consequently, the Cape May County Plaintiffs’ Motion for Preliminary Injunction is DENIED as moot.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Federal Immigration Statutory Framework

"The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens" pursuant to its constitutional authority to " ‘establish a uniform Rule of Naturalization’ and its inherent power as a sovereign to control and conduct relations with foreign nations." Arizona v. United States , 567 U.S. 387, 395, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (quoting U.S. Const., Art. I, § 8, cl. 4 ). Pursuant to this authority, the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et seq. , "sets out the ‘terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’ " Kansas v. Garcia , ––– U.S. ––––, 140 S. Ct. 791, 797, 206 L.Ed.2d 146 (2020). The INA further governs "which aliens may be removed from the United States and the procedures for doing so." Arizona , 567 U.S. at 396, 132 S.Ct. 2492. "Agencies in the Department of Homeland Security [("DHS")] play a major role in enforcing the country's immigration laws," including Immigration and Customs Enforcement ("ICE"). Id. at 397, 132 S.Ct. 2492. ICE "conducts criminal investigations involving the enforcement of immigration-related statutes" and operates the Law Enforcement Support Center, which "provides immigration status information to federal, state, and local officials around the clock." Id. ICE is additionally responsible "for the identification, apprehension, and removal of illegal aliens from the United States." Id. (quotation omitted).

Notwithstanding the federal government's " ‘broad, undoubted power over the subject of immigration and the status of aliens,’ " the "States possess primary authority for defining and enforcing the criminal law." City of Philadelphia v. Att'y Gen. of United States , 916 F.3d 276, 281 (3d Cir. 2019) (quoting Arizona , 567 U.S. at 381, 132 S.Ct. 2492). Consistent with that sovereign power, the INA contemplates states’ participation in the enforcement of immigration law since "[c]onsultation between federal and state officials is an important feature of the immigration system." Arizona , 567 U.S. at 411–12, 132 S.Ct. 2492. However, § 1357(g) does not compel state and local governments to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U.S.C. § 1357(g)(10).² Rather, the statute speaks in voluntary terms. States’ cooperation may include "situations where States participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities." Arizona , 567 U.S. at 410, 132 S.Ct. 2492. Furthermore, ICE may request state and local law enforcement agencies to furnish "information about when an alien will be released from their custody." Id. (citing § 1357(d) ); see also 8 C.F.R. § 287.7(a) (setting forth that DHS may issue a detainer, which acts as "a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible").

Moreover, pursuant to the INA, state and local law enforcement agencies may voluntarily enter into agreements, known as "287(g) Agreements,"³ under which state or local law enforcement "officers [can] perform the duties of a federal immigration officer under the direction and supervision of the Attorney General after completing adequate immigration training." City of South Miami v. Desantis , 408 F. Supp. 3d 1266, 1293-94 (S.D. Fl. 2019) (citing 8 U.S.C. § 1357(g) ). There is, however, no requirement that localities enter into such agreements and, critically, such agreements may only be carried out "to the extent consistent with State and local law." 8 U.S.C. § 1357(g)(1).

Finally, specifically relevant to the instant action are 8 U.S.C. § 1373 and 8 U.S.C. § 1644, which govern the sharing of information between state and local governments and the federal government in the enforcement of immigration laws. These sections provide that

[n]otwithstanding 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, the [federal government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. § 1373(a) ; see also 8 U.S.C. § 1644 ("Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States."). Correspondingly, the federal government "shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information." Id. § 1373(c).

B. The Immigrant Trust Directive

On November 29, 2018, Attorney General Grewal issued Directive No. 2018-6 (the "Immigrant Trust Directive" or "Directive"), to amend certain rules governing the interaction of state and local law enforcement and federal immigration authorities.⁴ State of New Jersey, Attorney General Law Enforcement Directive No. 2018-6 v2.0 ("Directive No. 2018-6"). Attorney General Grewal expressed that the Directive was necessary based on the federal government's increased reliance "on state and local law enforcement agencies to enforce federal civil immigration," which has "present[ed] significant challenges to New Jersey's law enforcement officers, who have worked hard to build trust with [the] state's large and diverse immigrant communities." Id. For example, the Directive observes that "[i]t is well-established ... that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities," making "it more difficult for officers to solve crimes and bring suspects to justice."⁵ Id. Accordingly, the Directive places certain limitations on local, state, and county law enforcement agencies with respect to enforcement of federal civil immigration law.

Relevant to this matter, the Directive limits New Jersey agencies from stopping, arresting, searching, or detaining any individual based solely on the individual's actual or suspected citizenship or any suspected violation of federal civil immigration law. Id. § II.A(1). Further, it prohibits state, county, and local law enforcement from "inquir[ing] about the immigration status of any individual" unless such inquiry is "a) necessary to the ongoing investigation of an indictable offense by that individual; and b) relevant to the offense under investigation." Id. § II.A(2).

The...