State and Local "Sanctuary" Policies Limiting Participation in Immigration Enforcement

See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2497 (2012) ("The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens."); De Canas v. Bica, 424 U.S. 351, 354 (1976) ("Power to regulate immigration is unquestionably exclusively a federal power."); Kleindienst v. Mandel, 408 U.S. 753, 767 (1972) (Congress has "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden") (internal citations omitted); Takahashi v. Fish and Game Commission, 334 U.S. 410, 416 (1948) ("The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal government."); Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) ("over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens into the United States).

Perhaps most notably, under §287(g) of the Immigration and Nationality Act (INA), the Department of Homeland Security (DHS) is authorized to enter written agreements with state and local jurisdictions that enable specially trained state or local officers to perform specific functions relative to the investigation, apprehension, or detention of aliens, during a predetermined time frame and under federal supervision. 8 U.S.C. §1357(g). For further discussion of state and local participation in the federal government's immigration enforcement efforts, see CRS Report R41423, Authority of State and Local Police to Enforce Federal Immigration Law, by [author name scrubbed] and [author name scrubbed], and CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by [author name scrubbed] and [author name scrubbed].

Arizona v. United States, 132 S.Ct. 2492 (2012). See also CRS Report R42719, Arizona v. United States: A Limited Role for States in Immigration Enforcement, by [author name scrubbed] and [author name scrubbed], and CRS Legal Sidebar WSLG96, Arizona v. United States: Some Immediate Takeaways, by [author name scrubbed].

See National Council of State Legislatures, 2014 Immigration Report (Jan. 2015), available at http://www.ncsl.org/research/immigration/2014-immigration-report.aspx (hereinafter "NCSL Immigration Report"); National Immigration Law Center, Inclusive Policies Advance Dramatically in the States (Oct. 2013), available at http://www.nilc.org/document.html?id=963; Federation for American Immigration Reform, Sanctuary Policies Across the U.S. (Oct. 2013) (identifying and providing links to various state and local enactments and policies restricting involvement in immigration enforcement activity), available at http://www.fairus.org/DocServer/amnesty_2013_debate/Sanctuary_Policies_Across_the_US_110513.pdf (hereinafter "FAIR Compilation of State and Local Restrictions"). See also Center for Immigration Studies, Map: Sanctuary Cities, Counties and State (July 2015) (interactive map identifying states, counties, and municipalities that limit the honoring of immigration detainer requests) (hereinafter "CIS Map of Jurisdictions which Restrict the Honoring of Immigration Detainers").

Arizona, 132 S. Ct. at 2497. See also supra footnote 1 (citing several Supreme Court cases recognizing exclusive federal power over immigration). Federal authority over immigration derives from multiple sources. The Constitution provides Congress with the authority "[t]o regulate Commerce with foreign Nations," and "[t]o establish an uniform Rule of Naturalization." U.S. Const., Art. I, §8, cl. 3-4. Federal authority to regulate the admission and presence of aliens also derives from its authority over foreign affairs. See Toll v. Moreno, 458 U.S. 1, 10 (1982) (discussing various constitutional provisions, as well as authority over foreign affairs, which may serve as a source for immigration regulation by the federal government); Arizona, 132 S. Ct. at 2498 (2012) (similar, and also stating that "[i]mmigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws"); Kleindienst, 408 U.S. at 767 (discussing Congress's plenary authority to make rules for admission of aliens).

Arizona, 132 S.Ct. at 2497.

8 U.S.C. §§1101, et seq.

For a brief discussion of immigration-related crimes, see CRS Legal Sidebar WSLG563, An Overview of Immigration-Related Crimes, by [author name scrubbed].

Padilla v. Kentucky, 559 U.S. 356, 365 (2010) ("We have long recognized that deportation is a particularly severe 'penalty,' but it is not, in a strict sense, a criminal sanction.") (internal quotations and citations omitted); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.... The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.").

De Canas v. Bica, 424 U.S. at 355 (1976) (holding that state law regulating employment of unauthorized aliens was not preempted by federal law, in a case decided prior to the INA being amended to comprehensively regulate alien employment and expressly preempting most state sanctions upon unauthorized alien employment). See also, e.g., Arizona, 132 S. Ct. at 2507-2511 (while finding many provisions of state immigration enforcement law were preempted, rejecting facial preemption challenge to provision requiring police to verify immigration status of lawfully stopped persons who were suspected of unlawful status); Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011) (holding that federal law did not preempt a state measure that authorized or required the suspension or termination of the licenses of businesses that knowingly or intentionally hire unauthorized aliens); Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9^th Cir. 2013) (upholding state law barring state courts from setting bail for unlawfully present aliens charged with certain felony offenses).

U.S. Const., amend. X.

Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 (1907) ("Decisions of this court ... recognize the possession, by each state, of powers never surrendered to the general government; which powers the state, except as restrained by its own Constitution or the Constitution of the United States, may exert not only for the public health, the public morals, and the public safety, but for the general or common good, for the well-being, comfort, and good order of the people."); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919) ("That the United States lacks the police power, and that this was reserved to the states by the Tenth Amendment, is true."). See also Kelley v. Johnson, 425 U.S. 238, 247 (1976) ("The promotion of safety of persons and property is unquestionably at the core of the State's police power....").

See supra footnote 10 (citing illustrative cases where state or local measures addressing unlawfully present aliens were upheld against preemption challenges); NCSL Immigration Report, supra footnote 4 (discussing legislation enacted by states in 2013 concerning non-U.S. citizens).

U.S. Const., art. VI, cl. 2.

Conversely, the federal government's exertion of its constitutional authority over a matter is permissible even if it targets activities that might also be regulated by a state under its traditional police powers. Kentucky Distilleries & Warehouse Co., 251 U.S. at 156 ("[W]hen the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a state of its police power, or that it may tend to accomplish a similar purpose."); Hodel v. Virginia Surface Min. and Reclamation Ass'n, Inc., 452 U.S. 264, 291 (1981) ("The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers.").

Arizona, 132 S. Ct. at 2500-01 (citing, e.g., Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011); Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)).

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). See also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (similar). However, in some recent cases, the Court did not deem a presumption against preemption to be applicable in the matter before it. See, e.g., Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013) (holding that the presumption against preemption does not apply in Election Clause cases); Tarrant Reg'l Water Dist. v. Herrmann, 133 S. Ct. 2120, 2132 (2013) ("There is, however, one interpretive tool that is inapplicable [with respect to interstate compacts]: the presumption against pre-emption."); Cuomo v. Clearing House Ass'n, L.L.C., 557 U.S. 519, 534 (2009) ("We have not invoked the presumption against pre-emption, and think it unnecessary to do so in giving force to the plain terms of the National Bank Act."). But see Hillman v. Maretta, 133 S. Ct. 1943 (2013) (applying the presumption with respect to the preemption of state laws governing domestic relations).

Judicial analysis of federal directives to the states has primarily centered on the permissibility of these requirements under the Tenth Amendment. However, such activities might arguably implicate other constitutional provisions, including the Guarantee Clause, which obligates the United States to "guarantee to every State in this Union a Republican Form of Government...." U.S. Const., art. IV, §4. Traditionally, courts have viewed claims presented under the Guarantee Clause as raising non-justiciable political questions, but in New York v. United States, the Supreme Court expressly left open the possibility that "not all claims under the Guarantee Clause present non-justiciable political questions." 505 U.S 144, 183-185 (1992) (also citing cases where the Court had rejected Guarantee Clause claims on non-justiciability grounds). Nonetheless, subsequent legal challenges to federal action that have been premised on the Guarantee Clause have proven unsuccessful. See, e.g., Padavan v. United States, 82 F.3d 23 (2^nd Cir. 1996) (challenge by state officials to adequacy of federal immigration enforcement policies, which was premised on violation of the Guarantee Clause, deemed non-justiciable); Chiles v. United States, 69 F.3d 1094 (11^th Cir. 1995) (same); City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y., 1997) (claim that federal law barring state and local restrictions on information-sharing with federal immigration authorities violated the Guarantee Clause claim was non-justiciable).

New York v. United States, 505 U.S 144 (1992).

Printz v. United States, 521 U.S. 898 (1997).

See New York, 505 at 155-160 (discussing division of sovereignty in the federalist system, and stating that although "[t]he actual scope of the Federal Government's authority with respect to the States has changed over the years ... the constitutional structure underlying and limiting that authority has not"); Printz, 521 U.S. at 518 ("It is incontestible that the Constitution established a system of 'dual sovereignty.'"). The Court identified this distinction as advancing multiple goals, including better ensuring political accountability by the federal and state governments and reducing the risk of tyranny that might result in the concentration of power with one sovereign. New York, 505 at 181-183; Printz, 521 at 920-921.

The Court has repeatedly recognized that the Supremacy Clause contemplates the enforceability of federal law in state court, and that the judicial power afforded under Article III of the Constitution permits federal courts, in appropriate circumstances, to order state officials to comply with federal laws. See, e.g., New York, 505 at 178-179 (discussing these cases and deeming them inapposite to the issue of whether Congress may commander states to perform federal regulatory functions, as the "Constitution contains no analogous grant of authority to Congress" as is granted to the courts under Article III and the Supremacy Clause).

505 U.S. at 161.

Printz, 521 U.S. at 933-934.

See, e.g., 42 U.S.C. §5779 (providing that, when a missing child report is submitted to state or local law enforcement, the agency shall report the case to the National Crime Information Center of the Department of Justice). For discussion of various federal reporting requirements applicable to states, see Robert A. Mikos, Can States Keep Secrets from the Federal Government?, 161 U. Pa. L. Rev. 103 (2012).

Printz, 521 U.S. at 918. See also id. at 936 (O'Connor, J., concurring) (describing the Court as having refrained "from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid"). For criticism of the distinction made by the Printz Court between reporting requirements and situations where the federal government directly compels states to administer federal regulatory programs, see generally Mikos, supra footnote 25.

The degree to which the federal law intrudes into a state's sovereignty might also be a factor. See supra footnote 26 (citing Court's distinction between federal laws that impose reporting requirements upon states and those that directly compel states to administer federal programs); City of New York, 179 F.3d 29 (2^nd Cir. 1999) (in case decided after Printz and New York, dismissing Tenth Amendment challenge to federal law proscribing state or local restrictions on sharing immigration status information with the federal immigration authorities, and suggesting analysis might be different if affected state restriction covered confidential information generally, rather than the sharing of a particular type of information with a particular federal entity).

Reno v. Condon, 528 U.S. 141 (2000).

Id. at 151.The Condon Court also stated that while state compliance with the DPPA would require "time and effort" by state officials, this did not lead to the measure being incompatible with anti-commandeering principles. Id. at 150. "That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace [situation] that presents no constitutional defect." Id. (quoting South Carolina v. Baker, 485 U.S. 505, 514-515 (1988) (upholding federal prohibition upon states' issuance of unregistered bonds in the face of a Tenth Amendment challenge)). See also Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (extension of overtime and minimum wage requirements of the Fair Labor Standards Act to public transit company authority did not violate Tenth Amendment).

Condon, 528 U.S. at 151. For further discussion of the evolution of Supreme Court jurisprudence in this area since the 1970s, see Congressional Research Service, United States Constitution: Analysis and Interpretation (Constitution Annotated), Federal Regulations Affecting State Activities and Instrumentalities, available at http://www.crs.gov/conan/default.aspx?mode=topic&doc=Amendment10.xml&t=1|2|3.

Printz, 521 U.S. at 926; New York, 505 U.S. at 173-174 ("Where federal regulation of private activity is within the scope of the Commerce Clause, we have recognized the ability of Congress to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation."). See also Hodel v. Virginia Surface Mining & Recl. Assn., 452 U.S. 264 (1981) (finding permissible a federal statute that preempted state regulation of surface mining except when it comported with federal standards); F.E.R.C. v. Mississippi, 456 U.S. 742 (1982) (upholding conditional preemption of state regulation of electricity and gas utilities).

New York, 505 U.S. at 167. See also South Dakota v. Dole, 483 U.S. 203, 207-208 (1987) (discussing constitutional limitations upon the degree to which Congress might conditionally grant federal funds, and upholding the conditioning of state receipt of a portion of federal highway funds upon the adoption of minimum drinking age of 21).

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2604 (2012) (quoting Dole, 483 U.S. at 411, and holding that provision in Affordable Care Act, which permitted withholding of future Medicaid payments to any state that failed to comply with conditions attached to offers for expanded federal Medicaid funding, was impermissibly coercive).

See supra footnote 4 (citing sources identifying various state and local restrictions on immigration enforcement activity).

The term "sanctuary" jurisdiction is not defined by federal statute or regulation, though it has been used by the Office of the Inspector General at the U.S. Department of Justice to reference "jurisdictions that may have state laws, local ordinances, or departmental policies limiting the role of local law enforcement agencies and officers in the enforcement of immigration laws." U.S. Dep't of Justice, Office of the Inspector General, Audit Division, Cooperation of SCAAP Recipients in the Removal of Criminal Aliens from the United States, January 2007 (redacted public version), at vii, n. 44 (defining "sanctuary" policies for purposes of study).

See, e.g., San Francisco, CA, Admin. Code, Chapter 12H: Immigration Status (San Francisco ordinance restricting cooperation with federal immigration enforcement efforts and referring to San Francisco as a "City of Refuge") (hereinafter "San Francisco Ordinance"), available at http://sfgsa.org/index.aspx?page=1067; Oakland, CA., Res. 81310 (2008) (reaffirming Oakland's status as a "City of Refuge" for unlawfully present aliens and expressing opposition to federal immigration raids at some city locations).

See Op-Ed, "Sanctuary City? Not L.A.," L.A. Times, Aug. 26, 2011 (disputing characterization of Los Angeles as a "sanctuary" jurisdiction, and citing matters where local police cooperate with federal immigration authorities). See generally Rose Cuison Villazor, What Is a "Sanctuary"?, 61 SMU L. Rev. 133 (2008) (discussing differing meanings given to the term "sanctuary" when describing policies towards unlawfully present aliens).

See, e.g., FAIR Compilation of State and Local Restrictions, supra footnote 4 (labeling measures of various jurisdictions as "sanctuary policies"); Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev. 1449 (2006) (discussing and describing various state and local law enforcement "sanctuary" policies).

For example, in 1979, the Los Angeles Police Department issued Special Order 40, which barred police officers from arresting persons for suspected violations of the federal statute criminalizing illegal entry (reversing a policy contained in a previous police order); prohibited the initiation of police action "with the objective of discovering the alien status of a person"; and established a process and criteria for notifying federal immigration officials when an unlawfully present alien was arrested on criminal charges. Los Angeles, CA Police Dept., Special Order 40: Undocumented Aliens, Nov. 29, 1979, available at http://www.lapdonline.org/assets/pdf/SO_40.pdf (hereinafter "LAPD Order").

See generally Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper Dictates?, 16 Pepp. L. Rev. 297 (1989) (identifying and distinguishing various state and local responses in support of church actions).

See Kittrie, supra footnote 38, at 1455 (surveying local "sanctuary" policies and describing them as doing "one or more of the following: (1) limit[ing] inquiries about a person's immigration status unless investigating illegal activity other than mere status as an unauthorized alien ('don't ask'); (2) limit[ing] arrests or detentions for violation of immigration laws ('don't enforce'); and (3) limit[ing] provision to federal authorities of immigration status information ('don't tell')").

See Padilla, 559 U.S. at 365; Lopez-Mendoza, 468 U.S. at 1038-39.

INA §212(a)(6)(A)(i), 8 U.S.C. §1182(a)(6)(A)(i) (providing that an alien is inadmissible and subject to removal if he or she is present in the United States without have been admitted or paroled, or arrives in the United States at any time or place other than as designated by the Attorney General (now the Secretary of Homeland Security)).

INA §275, 8 U.S.C. §1325.

INA §276, 8 U.S.C. §1326. For discussion of other criminal statutes potentially applicable to unlawfully present aliens, see CRS Legal Sidebar WSLG563, An Overview of Immigration-Related Crimes, by [author name scrubbed].

See, e.g., San Jose, CA, Police Department Duty Manual (redacted public version) (2015), at 501 ("Officers will not detain or arrest any person not suspected of a State felony or State or local misdemeanor or infraction violation solely on the basis of the person's citizenship or status under civil immigration laws."), available at http://www.sjpd.org/Records/DutyManual; Washington, DC, Mayor's Order 2011-174 (Oct. 19, 2011), at 2 ("No person shall be detained solely on the belief that he or she is not present legally in the United States or that he or she has committed a civil immigration violation."), available at http://dcregs.dc.gov/Gateway/NoticeHome.aspx?NoticeID=1784041 (hereinafter "DC Order"); Or. Rev. Stat. §181.850 (barring use of Oregon state funds or resources to arrest persons for presence in violation of federal immigration laws). See generally FAIR Compilation of State and Local Restrictions, supra footnote 4 (identifying similar restrictions in other jurisdictions).

See, e.g., LAPD Order, supra footnote 39 (barring arrests for federal crime of unlawful entry); Phoenix, AZ, Police Department Operations Order Manual, at 1.4 (rev. 2011) ("The investigation and enforcement of federal laws relating to illegal entry and residence in the United States is specifically assigned to [Immigration and Customs Enforcement within DHS]."), available at https://www.phoenix.gov/policesite/Documents/089035.pdf.

https://www.phoenix.gov/policesite/Documents/089035.pdf.

For discussion of various INA provisions that authorize immigration enforcement activity by states and localities (oftentimes under the direction of federal authorities), see CRS Report R41423, Authority of State and Local Police to Enforce Federal Immigration Law, by [author name scrubbed] and [author name scrubbed].

See supra discussion at "Legal Background."

Arizona, 132 S.Ct. at 2507. The Arizona Court's discussion of states' authority to enforce federal immigration law was in reference to arrests for non-criminal immigration status violations. The Court did not opine as to whether state law enforcement agencies are also precluded from making arrests for criminal violations of federal immigration law. However, lower courts have generally recognized that state and local police are not preempted from making such arrests. See, e.g., Gonzales v. City of Peoria, 722 F.2d 468 (9^th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9^th Cir. 1999).

See, e.g., San Francisco Ordinance, supra footnote 36 (enacted in 1989, and subsequently amended to permit communication with federal immigration authorities regarding aliens who have committed felonies); New York City, NY, Exec. Order 124, City Policy Concerning Aliens (1989) (limiting transmission of information about an alien to federal immigration authorities except in certain circumstances, including when the alien was suspected of criminal activity) (hereinafter "1989 New York City Ordinance"), available at http://www.nycourts.gov/library/queens/PDF_files/Orders/ord124.pdf (revoked and replaced in 2003 by New York City Exec. Order 34, as amended by Exec. Order 41, to permit information-sharing in a broader range of circumstances, but not on the basis of alien's unlawful immigration status; copies of these orders can be accessed at http://www.nyc.gov/html/imm/html/eoll/eoll.shtml); Governor of Maine, Exec. Order 13 FY 04/05, Concerning Access to State Services By All Entitled Maine Residents (Apr. 9, 2004) (limiting the sharing of information about aliens with federal immigration authorities, except when an alien is involved in illegal activity other than unlawful status; rescinded by Exec. Order 08 FY 11/12 (Jan. 6, 2011)).

P.L. 104-193, §434 (1996); 8 U.S.C. §1644.

P.L. 104-208, Div. C, §642 (1996); 8 U.S.C. §1373.

Whether Congress could permissibly require states and localities to submit collected information to federal immigration authorities has not been definitively resolved. As previously noted, the Supreme Court in Printz distinguished federal laws requiring states to report certain information to federal agencies from instances where it compelled state authorities to administer a federal regulatory program as to private parties, and chose not to opine upon whether reporting requirements violated anti-commandeering principles. Printz, 521 U.S. at 918. See also supra discussion at "Legal Background."

The provisions expressly apply to restrictions on immigration-related communication between federal, state, and local government entities and employees. In 2005, a federal district court ruled that neither PRWORA §434 nor IIRIRA §642 prevented it from issuing a protective order in a case that barred plaintiffs, who were private citizens, from disclosing the immigration status of an intervening party in the litigation. Day v. Sebelius, 227 F.R.D. 668 (D. Kan. 2005).

8 U.S.C. §1373(a).

8 U.S.C. §1373(b). Federal immigration authorities are also required to respond to immigration status or citizenship verification requests made by state or local authorities pertaining to persons within their jurisdiction. 8 U.S.C. §1373(c).

1989 New York City Ordinance, supra footnote 51.

The city also argued that the information-sharing provisions in PRWORA and IIRIRA violated the Guarantee Clause of the Constitution, U.S. Const. art. IV, §4, by interfering with the city's oversight of its employees. This claim was rejected by the reviewing courts. City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997) (ruling that claim was non-justiciable); 179 F.3d 29 (2^nd Cir. 1999) (even assuming justiciability of a Guarantee Clause claim, PRWORA and IIRIRA information-sharing provisions were permissible). See also supra footnote 18 (discussing judicial treatment of Guarantee Clause claims).

See City of New York, 179 F.3d at 35.

Id.

Id.

Id. at 37 ("The effect of [PRWORA §434 and IIRIRA §642]…is to nullify an Order that singles out and forbids voluntary cooperation with federal immigration officials. Whether these Sections would survive a constitutional challenge in the context of generalized confidentiality policies that are necessary to the performance of legitimate municipal functions and that include federal immigration status is not before us and we offer no opinion on that question.").

At the time City of New York was decided, the federal agency primarily responsible for immigration enforcement (and specifically referenced by PRWORA §434 and IIRIRA §642) was the Immigration and Naturalization Service (INS). Following the establishment of the Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002 (P.L. 107-296), the INS was abolished and its enforcement functions were transferred to DHS. See 6 U.S.C. §251.

City of New York, 179 F.3d at 35.

528 U.S. 1115 (2000).

See supra discussion at "Legal Background."

Although the federal statute upheld in the Condon case is in some ways similar to the information-sharing provisions in IIRIRA and PRWORA, the statutes are not wholly analogous. While each statute regulates information collected by states, the statute upheld in Condon was characterized by the Court as one of general applicability, regulating both states, as suppliers of motor vehicle information, and private parties that resold the information in interstate commerce. Condon, 528 U.S. at 151. The information-sharing provisions in IIRIRA and PRWORA, however, only address information collected and shared between government entities. But see Dep't of Justice, Brief on Opposition of Petition to Grant Cert., City of New York v. United States, 528 U.S. 115 (No. 99-328), at 12 (characterizing the information-sharing provisions of IIRIRA and PRWORA as components of larger regulation schemes that also addressed private activity). While there is judicial support for the constitutionality of federal regulation of state conduct through laws of general applicability, the Condon court expressly declined to "decide whether general applicability is a constitutional requirement for federal regulation of the States…." Condon, 528 U.S. at 151.

See, e.g., New York City, NY, Exec. Order 41, City-Wide Privacy Policy (2003) (restricting disclosure of immigration-related information); San Francisco Ordinance, supra footnote 36 (barring the request or dissemination of immigration status information). A common feature of many state or local information-sharing restrictions is language permitting communication when it is required by law. Arguably, such language could be interpreted to allow compliance with the information-sharing provisions of IIRIRA and PRWORA, as these measures "require" voluntary communication to be permitted.

See, e.g., LAPD Order, supra footnote 39 ("Officers shall not initiate police action with the objective of discovering the alien status of a person."); DC Order, supra footnote 46 (public safety employees "shall not inquire about a person's immigration status ... for the purpose of initiating civil enforcement of immigration proceedings that have no nexus to a criminal investigation."); San Francisco Ordinance, supra footnote 36 (barring law enforcement from stopping or questions persons solely on the basis of immigration status).

See DC Order, supra footnote 46 ("It shall be the policy of Public Safety Agencies not to inquire about the immigration status of crime victims, witnesses, or others who call or approach the police seeking assistance."); New Haven, CN, Mayor's Office, Press Release, New Haven Police Issue Executive Order – No Resident Should Be Afraid of Reporting Crime (Dec. 14, 2006) (discussing General Order 06-2, which, among other things, establishes policy of New Haven Police Department not to inquire into the immigration status of crime victims and witnesses), available at http://www.cityofnewhaven.com/Mayor/ReadMore.asp?ID={874974A9-AC89-465B-A649-57D122E9FAF9}.

See, e.g., San Francisco Ordinance, supra footnote 36 (general prohibition on gathering information about immigration status subject to exceptions, including for aliens who have committed felonies); Chicago, IL, Chicago Municipal Code Chapter 2-173, Welcoming City Ordinance (subject to specific exceptions, including as required by law, "[n]o agent or agency shall request information about or otherwise investigate ... the citizenship or immigration status of any person....").

See 8 U.S.C. §1373(b) (barring state or local restrictions on sending, maintaining, or exchanging immigration status information with federal immigration authorities).

Sturgeon v. Bratton, 95 Cal. Rptr.3d 718 (Cal. Dist. Ct. App. 2009). See also LAPD Order, supra footnote 39 (barring initiation of police action for sole purpose of determining person's immigration status).

Arizona, 132 S. Ct. at 2508-2509. The Supreme Court's analysis turned primarily on the issue of whether Arizona's requirement that police communicate with federal immigration authorities was preempted by federal law, rather than the issue of when it might be appropriate to question stopped individuals about their immigration status. Indeed, the Court suggested that immigration status investigations by Arizona police could be subject to as-applied challenges. Id. at 2509.

To the contrary, the Arizona Court construed federal immigration law as generally permitting state and local police to play a limited role in immigration enforcement. Id. at 2506 (state police were generally preempted from arresting aliens for suspected immigration violations in the absence of an authorizing federal statute).

The standard detainer form (Form I-247) allows ICE to indicate that it has taken certain actions that could lead to the alien's removal (e.g., initiating removal proceedings or an investigation into the alien's removability). The form also allows ICE to request that the other agency take certain actions that could facilitate removal (e.g., holding the alien temporarily, notifying ICE prior to releasing the alien). See, e.g., U.S. Dep't of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/12), available at http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf. ICE also obtains custody of aliens for removal purposes through means other than detainers. See CRS Report R42690, Immigration Detainers: Legal Issues, by [author name scrubbed], at p. 1 n.3.

See, e.g., Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950) (stating, of an alien whom immigration officials sought for purposes of removal, that "a detainer has been lodged for the body of the petitioner at the time that the fulfillment of the sentence has expired").

In particular, Secure Communities was seen to result in the issuance of more detainers for aliens at earlier stages in criminal proceedings than was the practice previously. See, e.g., Brizuela v. Feliciano, No. 3:12CV226, Memorandum of Law in Support of Motion for Order to Show Cause and Leave to Propound Precertification Discovery Requests, at 7 (filed D. Conn., Feb. 22, 2012) ("Immigration detainers are an integral part of the Secure Communities program; indeed, the program depends on immigration detainers to work."); Nat'l Day Laborer Organizing Network v. U.S. ICE, No. 1:10-cv-3488, Declaration of Ann Benson in Support of Plaintiffs' Opposition to Defendants' Motion for Stay (filed S.D.N.Y., Nov. 18, 2011) ("The belief among the advocacy community is that if a local jurisdiction refuses to honor detainer requests, then the consequences of Secure Communities can be averted.").

See, e.g., U.S. ICE, Secure Communities: The Basics, available at http://www.ice.gov/secure_communities (last accessed: April 29, 2015).

Id.

John Morton, Director, U.S. ICE, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, Mar. 2, 2011, available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf. The priorities that Mr. Morton articulated appear to have remained in effect until November 20, 2014, when they (along with the Secure Communities program) were replaced. See U.S. Dep't of Homeland Security, Secretary Jeh Charles Johnson, Secure Communities, Nov. 20, 2014, available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf (discontinuation of the Secure Communities program); U.S. Dep't of Homeland Security, Secretary Jeh Charles Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, Nov. 20, 2014, available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf (superseding the March 2, 2011, memorandum on civil immigration enforcement priorities).

See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, available at http://www.legalactioncenter.org/sites/default/files/docs/lac/NGO-DetainerCommentsFinal-10-1-2010.pdf. These comments were made in response to changes in ICE's detainer policy proposed in 2010. Critics of Secure Communities also alleged that state and local officials held aliens longer than the 48 hours (excluding weekends and federal holidays) purportedly authorized by the detainer form and regulations, and that the program resulted in racial profiling and negatively affected community policing strategies. See, e.g., id.; William Fisher, U.S. Sheriff Abused Immigration "Detainer," Lawsuit Charges, Inter Press Service, Apr. 23, 2010, available at http://www.ipsnews.net/2010/04/us-sheriff-abused-immigration-detainer-lawsuit-charges/.

See, e.g., Patricia Mazzei, Miami-Dade Plans to Stop Paying for Federal Immigration Detentions, Miami Herald, Dec. 18, 2013, available at http://www.miamiherald.com/2013/12/18/3826317/miami-dade-plans-to-stop-paying.html (reporting Miami-Dade county's adoption of a policy of honoring detainers only for "dangerous criminals and repeat immigration-law breakers"); California Assembly Bill No. 4, enacted Oct. 5, 2013, available at http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0001-0050/ab_4_bill_20131005_chaptered.pdf (permitting law enforcement officers to honor immigration detainers only in certain circumstances (e.g., the individual has been convicted of a "serious or violent felony"); Connecticut Adopts Law to Limit Immigration Detainers, New Haven Register News, June 6, 2013, available at http://www.nhregister.com/general-news/20130626/connecticut-adopts-law-to-limit-immigrant-detainers-2 (honoring detainers only for "immigrants who have felony convictions, belong to gangs, show up on terrorist watch lists, are subject to deportation orders or meet other safety risks").

Policy for Responding to ICE Detainers, Sept. 7, 2011, available at http://cookcountygov.com/ll_lib_pub_cook/cook_ordinance.aspx?Window/Args=1501 (amending §46-37 of the Cook County, Illinois, Code).

Cook County, Illinois, for example, includes in its detainer policy a prohibition upon county personnel "expend[ing] their time responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release date while on duty." Id. This prohibition appears intended to avoid situations wherein immigration officials learn of an alien's upcoming release and are present outside the county facility to take him or her into custody. The prohibition seems to have been drafted as it was—i.e., restricting the sharing of information about "incarceration status or release date while on duty"—in order to avoid conflicts with §434 of PRWORA and §642 of IIRIRA, both of which expressly prohibit states and localities from enacting measures that would limit the ability of state and local governments or officials to share information regarding "immigration or citizenship status" with federal officials. Insofar as Cook County's detainer policy restricts only the sharing of information about aliens' incarceration status or release date while officers are on duty, an argument could be made that it does not run afoul of PRWORA and IIRIRA because it does not absolutely bar sharing of information about immigration or citizenship status. However, in 2012 the Director of ICE claimed that the Cook Country restriction and related measures could be impermissible because they prohibit local officials from responding to ICE inquiries. See Letter from U.S. ICE Director John Morton to Cook County President Toni Preckwinkle, Jan. 4, 2012, available at http://legacy.cookcountygov.com/secretary/committees/LegislationIntergov/FY2012/reports/legis02-09-12%20%28incl.%20attachments%29.pdf#page=39.

See, e.g., Judicial Watch (JW), Press Release, JW Files Lawsuit Against Cook County, Ill. Sheriff for Refusal to Honor ICE Immigration Detainers, Apr. 22, 2013, available at http://www.judicialwatch.org/press-room/press-releases/judicial-watch-files-lawsuit-against-cook-county-ill-sheriff-for-refusal-to-honor-ice-immigration-detainers/.

The only express mention of detainers in the INA is in §287(d)(1)-(3), 8 U.S.C. §1357(d)(1)-(3), which discusses the issuance of detainers for aliens arrested for offenses relating to controlled substances. For further discussion of this provision and, particularly, whether it restricts ICE's authority to issue detainers for other offenses, see generally CRS Report R42690, Immigration Detainers: Legal Issues, by [author name scrubbed], at pp. 9-11.

See, e.g., Rios-Quiroz v. Williamson County, 2012 U.S. Dist. LEXIS 128237, at *11 (M.D. Tenn., September 10, 2012) (expressly rejecting the view that the word "shall" in the detainer regulation, discussed below, prescribes the maximum period of any detention, instead of requiring the alien be detained); Moreno v. Napolitano, 2012 U.S. Dist. LEXIS 170751, at *14 (N.D. Ill., Nov. 30, 2012) (describing the language in DHS regulations stating that state and local law officers "shall maintain" custody of an alien at IC''s request as "mandatory language"). Note, however, that the language in Moreno arguably reflects the procedural posture of the case, which required that "all reasonable inferences [be] drawn in favor of the plaintiff," and the plaintiffs subsequently conceded that detainers are not mandatory. See 2012 U.S. Dist. LEXIS 170751, at *14-*15; No. 11 C 5452, 2014 U.S. Dist. LEXIS 138576, at *13-*14 (N.D. Ill., Sept. 30, 2014).

8 C.F.R. §287.7(d) (emphasis added).

Id.

See, e.g., Jimenez Moreno v. Napolitano, No. 11-CV-05452, Defendants' Answer, at ¶ 24 (filed N.D. Ill., Dec. 27, 2012) (federal government specifically denying the allegation that federal regulations "impose[] a requirement upon [a state or local law enforcement agency] to detain [aliens] on [its] behalf" in its answer to a complaint filed in federal district court in Illinois challenge federal detainer practices); Dep't of Homeland Security, ICE Detainers: Frequently Asked Questions, available at http://www.ice.gov/news/library/factsheets/detainer-faqs.htm (last accessed: July 9, 2015) (characterizing detainers as requests). Note also that the standard detainer form currently states that detainers are "requests." See U.S. Dep't of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/12), available at http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf.

See, e.g., Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 438 (6^th Cir. 2013) (federal immigration officials issuing detainers to local law enforcement "asking the institution to keep custody of the prisoner for the [federal immigration] agency or to let the agency know when the prisoner is about to be released"); Liranzo v. United States, 690 F.3d 78, 82 (2d Cir. 2012) ("ICE issued an immigration detainer to [jail] officials requesting that they release Liranzo only into ICE's custody"); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4^th Cir. 2009) (detainers as "request[s] that another law enforcement agency temporarily detain an alien"); United States v. Female Juvenile, A.F.S., 377 F.3d 27, 35 (1^st Cir. 2004) ("detainer . . . serves as a request that another law enforcement agency notify the INS before releasing an alien from detention").

745 F.3d 634, 644 (3d Cir. 2014).

Id.

Secure Communities, supra footnote 82, at 2. Specifically, the fingerprints of persons arrested by state and local officers are sent to the FBI's Integrated Automatic Fingerprint Identification System (IAFIS), which then sends them to ICE's Automated Biometric Identification System (IDENT). This system automatically notifies ICE personnel whenever the fingerprints of persons arrested by state and local officers match those of a person previously encountered and fingerprinted by immigration officials. ICE personnel then review other databases to determine whether the person is in the United States illegally or otherwise removable, and may issue detainers for aliens who appear to be removable.,

Id. Specifically, aliens must have been convicted of an offense listed in the priority 1(a), (c), (d), or (e), or priority 2(a) or (b), categories as given in the November 20, 2014, memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants. See Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, supra footnote 82. These "priority" categories include: (1) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; (2) aliens convicted of offenses of which an element was active participation in a criminal street gang, as defined in 18 U.S.C. §521(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; (3) aliens convicted of offenses classified as a felony in the convicting jurisdiction (other than a state or local offense for which an essential element was the alien's immigration status); (4) aliens convicted of an "aggravated felony," as that term was defined in INA §101(a)(43) at the time of the conviction; (5) aliens convicted of three or more misdemeanor offenses (other than minor traffic offenses or state or local offenses for which an essential element was the alien's immigration status), provided that the offenses arise out of three separate incidents; and (6) aliens convicted of "significant misdemeanors," such as offenses of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; driving under the influence; or offenses for which the individual was sentenced to time in custody of 90 days or more.

Secure Communities, footnote 82, at 2.

Id. These limitations on the use of detainers to request that states and localities hold aliens after they would otherwise be released for any state or local offense also serve to address recent concerns about whether such holds are permissible under the Fourth Amendment. See Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or., Apr. 11, 2014) (finding a violation of the Fourth Amendment where a county denied an alien release on bail for which she otherwise qualified, and held her an additional day after her release from state charges, because she was the subject of an immigration detainer requesting that she be held so that ICE could investigate her removability); Morales v. Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014) (finding that the Fourth Amendment claim of a naturalized U.S. citizen who was held pursuant to a detainer so that ICE could investigate her removability had been sufficiently pled to withstand a motion to dismiss).

INA §274(a)(1)(A)(ii)-(iii); 8 U.S.C. §1324(a)(1)(A)(ii)-(iii) (imposing a fine and/or term of imprisonment upon any person who "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law; [or] knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation").

See Kristina M. Campbell, Humanitarian Aid Is Never a Crime? The Politics of Immigration Enforcement and the Provision of Sanctuary, 63 Syracuse L. Rev. 71, 113, 115 (2012); Cuison Villazon, supra footnote 37 at 139, 144.

See, e.g., United States v. Gonzalez-Torres, 273 F.3d 1181 (9^th Cir. 2001); United States v. Aguilar, 883 F.2d 662 (9^th Cir. 1989), cert. denied, 498 U.S. 1046 (1991); United States v. Merkt, 794 F.2d 950 (5^th Cir. 1986); United States v. Elder, 601 F. Supp. 1574 (S.D. Tex. 1985).

Compare United States v. Powell, 498 F.3d 890 (9^th Cir. 1974) (defendant need not know the names of individual aliens to know that they are unlawfully present), cert. denied, 419 U.S. 866 (1974) with United States v. Camacho-Davalos, 468 F.2d 1382 (9^th Cir. 1972) (defendant cannot be said to know that individuals are unlawfully present aliens based on the facts that they are "Mexican appearing," speak Spanish, and could not produce immigration documents upon request).

See, e.g., United States v. Velasquez-Cruz, 929 F.2d 520 (8^th Cir. 1991) (defendant's actions must be more than incidental to the alien's unlawful presence, they must have played a key role); United States v. Barajas-Chavez, 134 F.3d 1444 (10^th Cir. 1998) (transportation in furtherance of an alien's unlawful presence refers to the defendant's purpose in providing transportation, not the logical result or effect of providing transportation); United States v. Salinas-Calderon, 585 F. Supp. 599 (D. Kan. 1984) (requiring a direct and substantial relationship between providing transportation and the furtherance of an alien's unlawful presence).

See, e.g., United States v. Vargas-Cordon, 733 F.3d 366 (2^nd Cir. 2013); United States v. Lopez, 521 F.3d 437 (2^nd Cir. 1975), cert. denied, 423 U.S. 995 (1975). It should also be noted that harboring need not involve clandestine sheltering, or concealment of unlawfully present aliens from the general public. See, e.g., United States v. Acosta De Evans, 531 F.2d 428 (9^th Cir. 1976) (harboring involves shelter from detection, not necessarily clandestine sheltering), cert. denied, 429 U.S. 836 (1976); United States v. Smith, 112 F.2d 83 (2d Cir. 1940) (concealment need only be from immigration officials, not from the general public).

See City and County of San Francisco, Legal Issues in Connection with Proposed Amendment to Sanctuary City Ordinance, Aug. 18, 2009 (copy on file with the authors) (noting that the investigation was still ongoing at the time this memorandum was written).

See generally CRS Report RL32480, Immigration Consequences of Criminal Activity, by [author name scrubbed].

Id. The most significant immigration consequences attach to any crime designated as an "aggravated felony" under the INA. INA §101(a)(43); 8 U.S.C. §1101(a)(43). The list of criminal offenses identified as aggravated felonies includes both general categories of crimes (e.g., theft, crimes of violence) and many specific criminal offenses (e.g., specific federal tax offenses). The definition also includes some misdemeanor offenses (i.e., offenses punishable by a maximum sentence of imprisonment for less than a year and a day), as well as traditional felonies (i.e., offenses punishable by more than a year imprisonment).

See U.S. Dep't of Justice, Felony Sentences in State Courts, 2004, Bureau of Justice Statistics Bulletin (Jul. 2007) (estimating that 1,079,000 adults were convicted of a felony by a state court in 2004, compared to 66,518 persons in federal court that same year).

In some instances, however, a conviction for a specified offense constitutes a ground for removal regardless of the sentence imposed. See, e.g., INA §237(a)(2)(A)(v), (a)(2)(B) (providing that aliens convicted of most controlled substance offenses, or for failing to register as a sex, offender are removable), 8 U.S.C. §1227(a)(2)(A)(v), (a)(2)(B).

See Wash. Rev. Code §9A.20.021 notes (2011) (explaining intent behind reduction of the maximum sentence for gross misdemeanor offenses to 364 days was to ensure that a single conviction for such an offense could not make an alien removable under INA provisions making a listed offense a ground for removal when the alien is sentenced to at least a year's imprisonment); Nev. Rev. Stat. §193.140 (2013).

For example, a crime of violence or theft constitutes an "aggravated felony" making a convicted alien removable if he was sentenced to at least a year's imprisonment. INA §101(a)(43)(F)-(G), 8 U.S.C. §1101(a)(43)(F)-(G); INA §237(a)(2)(A)(iii), 8 U.S.C. §1227(a)(2)(A)(iii). See also INA §237(a)(2)(A)(i) (providing that a conviction for a crime of moral turpitude within five years of admission is a removable offense if the alien had been sentenced to imprisonment for one year or more). As noted previously, some criminal convictions constitute grounds for removal regardless of the sentence imposed. See supra footnote 110. Moreover, two or more convictions of crimes of moral turpitude, not arising out of the same scheme of conduct, make an alien removable. INA §237(a)(2)(A)(ii), 8 U.S.C. §1227(a)(2)(A)(ii).

See generally Washington State Supreme Court, Gender and Justice Commission and Minority and Justice Commission, Immigration Resource Guide for Judges (Jul. 2013) (providing guidance to state judges regarding the immigration consequences of criminal sentences and convictions under Washington state law), available at http://www.courts.wa.gov/content/manuals/Immigration/ImmigrationResourceGuide.pdf (hereinafter "Washington Immigration Guide for Judges").

For INA purposes, a "conviction" refers to:

a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

INA §101(a)(48)(A), 8 U.S.C. §1101(a)(48)(A). "[T]he question of what constitutes a "conviction" [under the INA]… is a question of federal, not state, law." Griffiths v. I.N.S., 243 F.3d 45, 49 (1^st Cir. 2001). Accordingly, whether or not the disposition of a criminal case constitutes a "conviction" under state law has no bearing on whether the disposition constitutes a "conviction" for federal immigration purposes. Some state courts or bar associations have issued instruction manuals that provide guidance as to when state courts' dispositions of criminal cases might constitute "convictions" for purposes of the INA. See Washington Immigration Guide for Judges, supra footnote 113, at chapter 7 (discussing deferred adjudications and other alternative forms of case resolution available under state law, and when these resolutions might constitute "convictions" for INA purposes).

When assessing whether a criminal sentence gives rise to removability, immigration authorities will give full faith and credit to a court reduction to an alien's criminal sentence nunc pro tunc, even if the reduction was made solely to prevent the criminal sentence from having immigration consequences. See In re Cota-Vargas, 23 I. & N. Dec. 849 (2005). On the other hand, a conviction that is vacated solely to avoid immigration consequences, rather than because of a procedural or substantive defect in the criminal proceedings that had resulted in the conviction, is treated as still being effective for removal purposes. See In re Pickering, 23 I. & N. Dec. 621 (BIA 2003); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10^th Cir. 2005) (citing agreement with Board of Immigration Appeals construction of the INA's definition of "conviction" by several federal circuits). But see Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5^th Cir. 2007) (conviction deemed in effect for immigration purposes even if a direct appeal is pending).

See, e.g., H.R. 4437, §613, 1^st Sess., 109^th Cong. (2005) (House-passed bill modifying INA's definition of "conviction"); H.R. 2278, §301, 1^st Sess., 113^th Cong.(2013) (similar).