Philadelphia. Credit: mandritoiu/Shutterstock.com. Philadelphia. Credit: mandritoiu/Shutterstock.com.

The judge considering whether the U.S. Department of Justice can withhold federal grant money from Philadelphia due to its status as a sanctuary city spent much of an oral argument session Thursday grilling federal lawyers about whether their arguments matched the facts.

The dispute centers around whether the DOJ can require Philadelphia to comply with 8 U.S.C. Section 1373 as a condition before awarding its Edward Byrne Memorial Justice Assistance Grant, which has provided the city about $2 million each year for public safety programs. The city is arguing that it is already in substantial compliance with a reasonable understanding of the section, but the DOJ is contending that the city’s policies barring law enforcement officials from providing immigration information about non-criminal immigrants goes against a plain reading of the section.

U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania, who is overseeing the dispute, said the majority of undocumented immigrants are in Philadelphia because they overstayed their visas, which is not a criminal offense. He further said the city already turns over information about immigrants facing criminal charges, or suspected of committing a crime.

“If the city is prepared to state that it is not protecting criminal aliens and will facilitate their arrest, isn’t that really what the department is entitled to and all it’s entitled to?” Balyson asked.

Assistant U.S. Attorney General Chad Readler responded that the government has significant enforcement discretion, and added that Section 1373 is more broad and does not deal only with those suspected of a crime, as overstaying a visa is a removable offense.

“You keep coming back to removability. But it’s never been enforced. Since World War II, there’s absolutely no enforcement of visa overstays,” Baylson cut in. “Someone receiving public benefits needs to show immigration status. Same with people in prison. The city is abiding with all of those federal laws and they’re also taking a very tough stand on criminal activity. They made it clear Philadelphia is not a sanctuary city for anyone accused, or convicted of a crime, so it’s a total misnomer.”

“Given the reality of this, I’m having trouble with what the department’s defense is of the regulations,” Baylson said. “If it was limited to criminal aliens, I don’t think we’d be here. The city would be in compliance, and you’d have bigger fish to fry.”

According to Readler, the main sticking point is that the city does not provide 48-hour notice of a release date for prisoners.

However, Baylson repeatedly said the record showed that immigration information for incarcerated people is available to customs agents, and frequently said that only about 17 percent of those in jail in Philadelphia have been convicted, so about 83 percent would not have any release dates that could be reported. He also said the record showed the city would need to hire additional people to monitor the prisons in order to comply with the DOJ’s interpretation of Section 1373.

“You haven’t recognized that, based on the testimony last week, the government’s assertion that Philadelphia doesn’t comply with this provision is factually wrong,” Baylson said. “Your letter asserting that Philadelphia is not in compliance is just wrong because you don’t pay attention to what is actually going on in Philadelphia.”

The city, which was represented by Sara Solow of Hogan Lovells, contended during the roughly three-hour argument session that the DOJ interprets Section 1373 far too broadly. She further contended that making it a condition of the grant is unreasonable, because it would not further of public safety, which is the purpose of the grant.

“The DOJ has never put forth the reading that they’re putting forward in this litigation,” Solow said, adding that the DOJ’s interpretation raised constitutional concerns. “That’s not immigration status information, that’s whereabouts information. Literally, every city has to provide the federal government with tracking in real time.”

Readler, however, countered that complying with the section would increase public safety, and said regular contract principals should apply to the case. The case, according to Readler, should boil down to the fact that 1373 is germane to the agreement, the city is on notice about the terms and the terms coercive.

“We wouldn’t be going through this exercise if this information wasn’t important to [Immigration and Customs Enforcement] and [Department of Homeland Security],” Readler said. “It’s not a constitutional question. If they want to keep a policy that is different than the federal policy, then don’t accept the grant.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.