(CNSNews.com) – U.S. Attorney General Loretta Lynch told a House Appropriations Subcommittee on Wednesday that the administration is changing how the Federal Bureau of Prisons handles illegal immigrants with deportation orders, allowing U.S. Immigration and Customs Enforcement to take custody first instead of turning those prisoners over to local and state authorities to face prosecution.
“I do want to reiterate the fact that one of the things we hope will be as effective also and more immediately effective is our policy whereby the Bureau of Prisons is – instead of deferring to the state or local entity detainer and turning a deportable individual over to them - that instead, Immigration Customs Enforcement or ICE will instead have the ability to step in and exercise their detainer first,” Lynch told the House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies during a hearing on the DOJ’s FY 2017 budget request.
Rep. John Culberson (R-Texas), chair of the subcommittee, thanked Lynch for her “timely response” to a letter he sent her earlier this year on sanctuary cities.
According to Culberson, Lynch replied to his letter, saying that when the DOJ receives a credible allegation that a local or state entity receiving funds under a department grant or reimbursement program has violated the law that mandates that they share information with ICE on the immigration status of their prisoners, the department can seek “criminal or civil enforcement actions against that entity.”
“Could you assure the committee that the Department of Justice will review grantees with such policies to ensure that they’re in compliance with all applicable federal laws?” Culberson asked.
“Certainly, that is a part of our grant review process, and as was also conveyed in the letter, I do want to reiterate the fact that one of the things we hope will be as effective also and more immediately effective is our policy whereby the Bureau of Prisons is – instead of deferring to the state or local entity detainer and turning a deportable individual over to them - that instead, Immigration Customs Enforcement or ICE will instead have the ability to step in and exercise their detainer first,” Lynch said.
“We have in the past deferred, because again, we work with our state and local colleagues, and we want to make sure that they can in fact adjudicate their cases as well, but particularly where we are dealing with a jurisdiction that essentially is not prone to honoring the ICE detainers – and those vary across the country. They just vary over time and place,” she said.
“Our policy’s going to be that ICE will instead have the first detainer, and that individual will go into ICE custody and deportation,” Lynch added.
Lynch explained that as a result of the new policy, there may be local cases that are not prosecuted, because the criminal alien will be taken into ICE custody and deported, but if a jurisdiction has concerns, the DOJ would need assurances that the individual would be returned to ICE custody afterwards.
“Now this may have the effect that there may be local cases that may not be able to be prosecuted, because again, the person will be taken into ICE custody and then deported,” Lynch said, “and if a jurisdiction has a concern over that, we will talk to them, but we would have to have assurances that ICE would also then be able to get the individual back at the end of an adjudication so that the deportation process could go underway.”
“So we are trying to be respectful of our state and local colleagues’ desires and goals to prosecute cases but also deal with this issue as well,” she added.
Rep. Harold Rogers (R-Ky.) asked Lynch whether the DOJ would seek to cease any grants that are earmarked to a particular sanctuary city if they violate the DOJ’s terms and whether Lynch would seek to stop a grant program.
“Where again, if a grant is tied to the applicable law – again, it has to be a connection between the issue and the grant,” Lynch said.
“For example, a grant for human trafficking would be different from a grant for community policy, but certainly as far as the auditing process, as part of the inspector general review, and as part of the overall grant management review, which the department’s civil and criminal division can also take under investigation if we receive a credible allegation that a grantee has violated a specific … federal law, we will make that referral,” she said.
“Again, there’s an audit process in general, but we also have the Office of Inspector General, who can step in and do a specific investigation of a specific jurisdiction and municipality, and we also have our civil and criminal divisions, depending on how the allegation arises,” Lynch added.
When asked whether it was a new policy, Lynch said it was in response to concerns expressed by the subcommittee, “but as I indicated, we feel that a way to deal with this issue immediately is to make sure that individuals who are being released from the Bureau of Prisons rather than be released into state custody would go directly into immigration custody and be dealt with for deportation there.”
“Frankly, a large part of the problem has been that as part of our collaborative working relationship with our state and local partners, as Mr. Chairman, you indicated, if there’s a detainer on an individual coming out of federal prison, certainly when I was a young prosecutor, individuals will be released from federal custody but have to go into New York state custody to either finish a sentence or to be prosecuted, and then at that point, at the end of the state case, deportation would be an option,” she said.
"Where a city is not necessarily inclined to work with the Department of Homeland Security,” Lynch said, and in that case, “as a general matter, we will instead use the immigration detainer first.”
“And as I indicated, where jurisdictions indicate this was likely to be a problem, we will talk with them, and we will work with them, but it is an area of great concern for us,” Lynch added.
“It’s particularly an area of concern for us, because there is unfortunately, case law that exists that – only in one circuit – but there is case law with a particular holding that in certain circumstances, cities’ compliance with the requirement that they provide us information may be voluntary,” she said.