ICE Begins Using Civil Subpoenas to Demand Information the Law Obliges Sanctuaries to Provide Anyway

By Dan Cadman on January 21, 2020

On January 15, the Associated Press published an article entitled, "Immigration agency subpoenas sanctuary city law enforcement", detailing how agents at Immigration and Customs Enforcement (ICE) are using civil subpoenas to demand that Denver city officials produce records relating to individuals who came into police custody and were then released despite the fact that they were "wanted for deportation".

Denver, it goes without saying, is a "sanctuary" city, although city officials are coy about coming out and declaring it, notwithstanding the practical effect of city policies.

The AP article outlines that all four of the aliens who are the subject of the subpoenas have criminal histories involving convictions for serious charges, and all had been previously deported — meaning that every one of them re-entered the United States unlawfully after their removals. It goes on to say:

But Denver officials strongly disputed the claim that they had not been cooperative with an initial request for information from ICE. Denver officials said they already had sent along information on three of the men. The fourth was still in custody, and information would be sent when he is released. [Emphasis added.]

Do you catch that? Information might only be provided after the individual — clearly a recidivist in every sense of the word — is put back onto the streets of Denver. This is a fine example of cooperation indeed.

One Denver official, Ryan Luby with the city attorney's office, is quoted this way:

The subpoenas were not issued by a court of law and not signed by a judge. There is no indication they are related to a criminal investigation. ... Denver does not comply with subpoenas unless they are Court-ordered or unless they are primarily related to a criminal investigation. Our immigration ordinance fully complies with federal law.

It's worth taking a moment to parse that statement fully.

"The subpoenas were not issued by a court of law and not signed by a judge." Presumably Luby is a lawyer, and competent to read the requirements of federal law. Sec. 1225(d)(4)(A) of Title 8 of the U.S. Code is very clear. It says this:

(A) The Attorney General and any immigration officer shall have power to require by subpoena the attendance and testimony of witnesses before immigration officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service, and to that end may invoke the aid of any court of the United States.

So, while as a technical matter such a subpoena has not been issued by a court, it's abundantly obvious that such subpoenas are lawful. What then justifies ignoring it? Would the city of Denver ignore a congressional subpoena, which also is not "issued by a court of law and signed by a judge"? How about a national security letter issued by the FBI, which not only isn't issued by court of law or signed by a judge, but isn't technically even a subpoena? I think the answers are obvious: in either of those cases, Denver would scramble to comply. Luby's response also overlooks, or chooses to ignore, the fact that there is a mechanism to force compliance through the courts, as is obvious by the last sentence of the provision I've quoted. Paragraph (B) of the same section of the U.S. Code then goes on to say:

(B) Any United States district court within the jurisdiction of which investigations or inquiries are being conducted by an immigration officer may, in the event of neglect or refusal to respond to a subpoena issued under this paragraph or refusal to testify before an immigration officer, issue an order requiring such persons to appear before an immigration officer, produce books, papers, and documents if demanded, and testify, and any failure to obey such order of the court may be punished by the court as a contempt thereof. [Emphasis added.]

So not only is the subpoena enforceable in a federal court, but Denver officials risk being held in contempt of court for failure to comply. Why then do they choose to expend inordinate time and effort — not to mention city taxpayer dollars — through refusal? The obvious answer is that they are actively involved in progressive and "woke" resistance against federal immigration laws.

"Denver does not comply with subpoenas unless they are Court-ordered or unless they are primarily related to a criminal investigation." (Emphasis added.) Again, I would presume — perhaps erroneously — that either Luby or someone else in the city attorney's office can read the law. I suggest that they peruse 8 U.S.C. Sec. 1326(b), in pertinent part:

(b) Criminal penalties for reentry of certain removed aliens

Notwithstanding subsection (a), in the case of any alien described in such subsection—


(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;

Given these men's prior criminal convictions and removals, it is clear that ICE agents are indeed focusing on the possibility of filing federal criminal charges for unlawful re-entry into the United States after removal.

"Our immigration ordinance fully complies with federal law." No, it doesn't. This goes beyond obtuse and right down the path of duplicity. 8 U.S.C. Sec. 1373(a) doesn't take a law degree to understand:

(a) In general.

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, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

Clearly ICE officials have felt obliged to issue the subpoenas precisely because they aren't getting the required cooperation in exchange of information and documents that Sec. 1373 demands.

As these things go, it's a welcome step that ICE is going to force the issue. Presumably they have coordinated their actions with the U.S. Attorney's Office, because an assistant U.S. attorney from that office will prepare the paperwork for federal court requesting that the presiding district court judge force the city of Denver to do what it was supposed to even absent a subpoena.

One hopes that this will be a good test case that can be applied nationwide. I'm thinking specifically, for instance, about the denial of motor vehicle information to federal immigration officials that was recently embedded in New York's absurdly named "Green-Light" law. Although that law specifies that the state will only honor subpoenas issued by federal court judges, the point is to force a confrontation that, inevitably, they must lose since any judge presiding over a request to enforce a properly issued ICE subpoena will not only oblige the state to honor it, but likely go further and enjoin that portion of the law as an improper infringement over a federal statute — one in which the supremacy doctrine reigns supreme.

Something else ICE officials should start considering in the context of sanctuaries — particularly to force law enforcement in those jurisdictions to produce deportable criminal aliens they have in custody when their policy is to ignore detainers — is the selective use of modified Blackie's warrants, signed by U.S. district court judges, authorizing them to search for and seize, even within the confines of a city or county jail, the alien(s) identified in the warrant (see here and here).

It would only take once or twice before such a jurisdiction caved rather than face the humiliation of repeatedly having their premises searched and aliens taken. I'm sure, in fact, that faced with production of such a warrant, jail officials would scramble to present their prisoner front-and-center and have those agents out the door as quickly and quietly as possible; something that should be happening on a routine basis in any case.