# United States v. THE STATE OF NEW JERSEY

> District Court, D. New Jersey · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10269846

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10269846

## How later opinions describe it (automated extraction)

- declining to consider legislative history of section 1373 because of the clarity of the statutory text
- finding that California limitation on information sharing with the federal government did not violate doctrine of intergovernmental immunity because “the purported ‘burden’ is California’s decision not to help the Federal government implement its immigration enforcement regime”

## Opinion text

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
UNITED STATES OF AMERICA, :
:
Plaintiff, : Civil Action No. 20-1364 (FLW) (TJB)
:
v. :
:
THE STATE OF NEW JERSEY; : OPINION
PHILLIP D. MURPHY, in his Official :
Capacity as Governor of the State of :
New Jersey; GUBRIR S. GREWAL, in :
his Official Capacity as Attorney General :
of New Jersey, :
:
Defendants. :
:

WOLFSON, Chief Judge:
The United States of America has filed a Complaint against the State of New Jersey, Phillip
D. Murphy, in his Official Capacity as Governor of the State of New Jersey; and Gubrir S. Grewal,
in his Official Capacity as Attorney General of New Jersey (“Attorney General Grewal”)
(collectively “Defendants”), seeking a declaration that certain provisions of Attorney General Law
Enforcement Directive No. 2018-6, otherwise known as the Immigrant Trust Directive, violate the
Supremacy Clause of the United States Constitution.1 Presently before the Court is Defendants’

1 In County of Ocean v. Grewal, 475 F. Supp. 3d 355 (D.N.J. 2020), this Court held that
certain provisions of the Immigrant Trust Directive are not preempted by federal law. While the
United States was not a party to County of Ocean, it filed a Statement of Interest in which it raised
similar arguments to those raised in this action. Because of the substantial similarities between
this action and County of Ocean, I incorporate my prior opinion by reference here, and in the
interest of judicial economy, quote the opinion where appropriate.
Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim.2 For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED.
I. BACKGROUND
a. Federal Civil Immigration Law
“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 (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

2 Additionally before the Court are several motions for leave to appear as amicus curiae that
have been filed by: (1) the City of New York and 18 other local governments, (2) Current and
Former Prosecutors and Law Enforcement Leaders, (3) the District of Columbia, (4) the American
Civil Liberties Union of New Jersey, and (5) Administrative, Constitutional, Immigration, and
Criminal Law Scholars. An amicus curiae is not a party to the litigation, but rather assists the
court in a particular mater of importance in a case. The Third Circuit has advised that “permitting
persons to appear . . . as friends of the court . . . may be advisable where third parties can contribute
to the court’s understanding” of the matter in question. See Harris v. Pernsley, 820 F.2d 592, 603
(3d Cir. 1987). “At the trial level, where issues of fact as well as law predominate, the aid of
amicus curiae may be less appropriate than at the appellate level, where such participation has
become standard procedure.” United States v. Alkaabi, 223 F. Supp. 2d 583, 592 n.16 (D.N.J.
2002) (quoting Yip v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985)); Liberty Lincoln Mercury
v. Ford Mtkg. Corp., 149 F.R.D. 65, 82 (D.N.J. 1993). A district court may grant amicus curiae
status where: “(1) the amicus has a ‘special interest’ in the case; (2) the amicus’s interest is not
represented competently or at all in the case; (3) the proffered information is timely and useful;
and (4) the amicus is not partial to a particular outcome in the case.” Alkaabi, 223 F. Supp. 2d at
592. The decision to permit an amicus curiae in a pending action “is solely within the broad
discretion of the district court.” Id. Considering these criteria, I find that participation of amicus
curiae is not warranted in this matter. I am familiar with both the facts and legal issues raised in
this action as the Court addressed substantially similar arguments in County of Ocean, 475 F. Supp.
3d 355. Indeed, as set forth infra, there is no reason for the Court to rule differently in this matter.
As such, the participation of amici would not be useful or helpful to the Court. Accordingly, the
pending motions for leave to appear as amicus curiae are denied.
subsequent treatment of aliens lawfully in the country.’” Kansas v. Garcia, 140 S. Ct. 791, 797
(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. “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. 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 281). 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. 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).3 Rather, the statute

3 8 U.S.C. § 1357(g)(10) specifically provides that

Nothing in this subsection shall be construed to require an agreement under
this subsection in order for any officer or employee of a State or political
subdivision of a State—
(A) to communicate with the Attorney General regarding the
immigration status of an individual, including reporting knowledge
that a particular alien is not lawfully present in the United States; or
speaks in voluntary terms. States’ cooperation may include “situations where States participate in
a joint task force with federal officials, 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. 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”).
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.”).

(B) otherwise to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens not
lawfully in the United States.

(emphasis added).
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 request verification or status information.” Id. § 1373(c).
Finally, relevant to the parties’ arguments, here, are sections 1226 and 1231(a). These

provisions govern the arrest and detention of an alien by federal civil immigration authorities
pending removal. Section 1226(a) provides that “[o]n a warrant issued by the Attorney General,
an alien may be arrested and detained pending a decision on whether the alien is to be removed
from the United States.” Except as provided in § 1226(c), the Attorney General is permitted to (1)
“continue to detain the arrested alien”; and (2) release the alien on bond or conditional parole. 8
U.S.C. § 1226(a)(1)–(2). Section 1226(c) provides for circumstances under which the Attorney
General is required to take mandatory custody of an alien subject to removal and specifically
provides that:
The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense
covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense
covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)
of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on
the basis of an offense for which the alien has been
sentence[d] to a term of imprisonment of a least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or
deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is
released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for
the same offense.
§ 1226(c)(1)(A)–(D). 8 U.S.C. § 1231(a)(1)(A) provides that “[e]xcept as otherwise provided in
this section, when an alien is ordered removed, the Attorney General shall remove the alien from
the United States within a period of 90 days (in this section referred to as the ‘removal period’).”
The removal period begins to run on the latest date of the following:
(i) The date the order of removal becomes administratively
final.

(ii) If the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the
court's final order.

(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.

Id. § 1231(a)(1)(B).
b. The Immigrant Trust Directive & the Instant Case
On November 29, 2018, Attorney General Grewal issued Attorney General Law
Enforcement Directive No. 2018-6 (the “Immigrant Trust Directive” or “Directive”), which was
thereafter revised on September 27, 2019. The Immigrant Trust Directive was issued to amend
certain policies governing the interaction of state and local law enforcement and federal
immigration authorities. See State of New Jersey, Attorney General Law Enforcement Directive
No. 2018-6 v2.0 (“Directive No. 2018-6”). These amendments were necessary, according to
Attorney General Grewal, based on the increased reliance of the federal government on state and
local law enforcement agencies to enforce federal civil immigration law, 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 immigration communities.” Id. Accordingly, the
Immigrant Trust Directive places certain limitations on the ability of local, state, and county law
enforcement to assist the federal government with the enforcement of federal civil immigration
law.
The United States specifically takes issue with two provisions of the Immigrant Trust
Directive. First, Section II.B of the Directive limits the ability of state, local, and county law
enforcement from providing certain “types of assistance to federal immigration authorities when

the sole purpose of that assistance is to enforce federal civil immigration law.” Relevant here,
Section II.B.5 prohibits state, local, and county law enforcement from:
Providing notice of a detained individual’s upcoming release from
custody, unless the detainee:

a) is currently charged with, has ever been convicted of, has
ever been adjudicated delinquent for, or has ever been found
guilty by reason of insanity of, a violent or serious offense
as that term is defined in Appendix A4;

b) in the past five years, has been convicted of an indictable
crime other than a violent or serious offense; or

c) is subject to a Final Order of Removal that has been signed
by a federal judge and lodged with the county jail or state
prison where the detainee is being held.

Directive No. 2018-6, § II.B.5. The Directive further sets forth certain exceptions to the limitations
set forth in Section II.B, and provides that
Nothing in Sections II.A and II.B shall be construed to restrict, prohibit,
or in any way prevent a state, county, or local law enforcement agency
or official from:

1. Enforcing the criminal laws of this state.

4 The term “violent or serious offense” is defined as: (1) “[a]ny first or second degree
offense, as defined in N.J.S.A. § 2C:43-1”; (2) [a]ny indictable domestic violence offense as
defined in N.J.S.A. § 2C:25-19, as well as any domestic violence assault defined in N.J.S.A. §
2C:25-19A(2)”; (3) “[a]ny other indictable offense” set forth in Appendix A of the Directive; and
(4) “[a]ny indictable offense under the law of another jurisdiction that is the substantial equivalent
to an offense described in paragraphs 1-3.” Directive No. 2018-6, App. A.
2. Complying with all applicable federal, state, and local laws.

3. Complying with a valid judicial warrant or other court order,
or responding to any request authorized by a valid judicial
warrant or other court order.

4. Participating with federal authorities in a joint law
enforcement taskforce the primary purpose of which is
unrelated to federal civil immigration.

5. Requesting proof of identity from an individual during the
course of any arrest or when legally justified during an
investigative stop or detention.

6. Asking an arrested individual for information necessary to
complete the required fields of the LIVESCAN database (or
other law enforcement fingerprinting database), including
information about the arrestee’s place of birth and country of
citizenship.

7. Inquiring about a person’s place of birth on a correctional
facility intake form and making risk-based classification
assignments in such facilities.

8. Providing federal immigration authorities with information
that is publicly available or readily available to the public in
the method the public can obtain it.

9. When required by exigent circumstances, providing federal
immigration authorities with aid or assistance, . . . .

10. Sending to, maintaining or receiving from federal
immigration authorities information regarding the citizenship
or immigration status, lawful or unlawful, of any individual.
See 8 U.S.C. §§ 1373, 1644.

Id. § II.C (footnote omitted).
Next, the United States challenges Section VI.A of the Directive, which provides that
State, county, and local law enforcement agencies and officials shall
promptly notify a detained individual, in writing and in a language
the individual can understand, when federal civil immigration
authorities request:

1. To interview the detainee. (See § II.B.4.)
2. To be notified of the detainee’s upcoming release from
custody. (See § II.B.5.)

3. To continue detaining the detainee past the time he or she
would otherwise be eligible for release. (See § II.B.6.)

When providing such notification, law enforcement officials
shall provide the detainee a copy of any documents provided by
immigration authorities in connection with the request.

Id. § VI.A.
On February 10, 2020, the United States filed the instant action, seeking a declaratory
judgment to invalidate the Immigrant Trust Directive as preempted by federal law under the
Supremacy Clause of the United States Constitution and an injunction barring Defendants from
enforcing the Directive. This motion to dismiss followed.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for “failure
to state a claim upon which relief may be granted.” Fed. R. Civ. P 12(b)(6). When reviewing a
motion to dismiss on the pleadings, courts “accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. Of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008) (quotations omitted). Under this standard, the factual allegations set
forth in a complaint “must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
III. DISCUSSION
A. The Supremacy Clause and Preemption
The Supremacy Clause of the United States Constitution provides that federal law “shall
be the supreme law of the land; and the judges in every state shall be bound thereby, anything in
the Constitution of laws of any State to the contrary notwithstanding.” U.S. Const., Art VI, cl. 2.

The Supreme Court has explained that the Supremacy Clause sets forth a “‘rule of decision’ . . .
that federal law is supreme in case of a conflict with state law.” Murphy v. Nat’l Collegiate Athletic
Ass’n, 138 S. Ct. 1461, 1479 (2018) (citation omitted) (quoting Armstrong v. Exceptional Child
Ctr., Inc., 575 U.S. 320, 324 (2015)). Put differently, “[s]tate law that conflicts with federal law
is . . . ‘without effect.’” Atkinson v. Luitpold Pharms., Inc., 448 F. Supp. 3d 441, 446 (E.D. Pa.
2020) (quoting Mutual Pharm. Co. v. Bartlett, 570 U.S. 472, 475 (2013)). There are three
categories of preemption: express preemption, conflict preemption, and field preemption. Murphy,
138 S. Ct. at 1480. Here, the United States argues that Sections II.B.5 is expressly preempted by
the INA and that both Sections II.B.5 and VI.A of the Directive are conflict-preempted by the INA.

i. Conflict Preemption
The United States first contends that Sections II.B.5 and VI.A are both conflict-preempted
by the INA. Conflict preemption occurs where a state law conflicts with federal law, notably in
“cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and
those instances where the challenged state law ‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.’” Arizona, 567 U.S. at 399400 (citations
omitted) (first quoting Florida Line & Avocado Growers, Inc. v. Paul, 372 U.S. 132, 142–43
(1963); and then Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see also Farnia v. Nokia, Inc., 625
F.3d 97, 122 (3d Cir. 2010) (“Conflict preemption exists (1) ‘where it is impossible for a private
party to comply with both state and federal requirements’ or (2) ‘where state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”
(quoting Fellner v. Tri-Union Seafoods, LLC, 539 F.3d 237, 251 (3d Cir. 2008))). There is,
however, “a strong presumption against preemption when Congress legislates in an area
traditionally occupied by the States.” United States v. California (California I), 314 F. Supp. 3d

1077, 1088 (E.D. Cal. 2018). In that connection, courts should assume that ‘the historic police
powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of
Congress.’” Arizona, 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator, Co., 331 U.S. 218, 230
(1947)).
a. Section II.B.5
The United States contends that Section II.B.5 of the Directive, which sets forth when state,
county, and local law enforcement officials are free to share information regarding an individual’s
immigration status with the federal government, conflicts with the “clear congressional”
commands that (1) “aliens generally must serve their state criminal sentences before removal,” see

8 U.S.C. § 1231(a)(4)(A), and (2), that “federal immigration officers are to assume custody of
unlawfully present aliens immediately upon their release from state or local custody,” see 8 U.S.C.
§§ 1226(a), (c), 1231(a). (Opp. Br., at 13.)
I addressed this exact argument in County of Ocean. There, the plaintiffs and the United
States, as an interested party, maintained that sections 1226 and 1231 preempted the information
sharing provisions of the Directive. This position was rejected because “sections 1226 and
1231(a)(1) impose obligations solely on the federal government.” County of Ocean, 475 F. Supp.
3d at 380. In that connection, I explained:
[U]nder those statutes, state and local law enforcement agencies
have no duty to assist the federal government with carrying out those
obligations, except as required by sections 1373 and 1644, i.e.,
information sharing. Indeed, nothing in sections 1231(a)(1) and
1226 suggests “that Congress impliedly mandated that state and
local governments would act in accordance with these statutes.” As
the Ninth Circuit has observed, “[e]ven if Congress had every
expectation that [the States] would [comply with these sections], and
opted not to codify its belief based on the presumption that states
would conduct their law enforcement activities in concert with
federal immigration efforts, it is a state's historic police power—not
preemption—that we must assume, unless clearly superseded by
federal statute.” United States v. California (California II), 921 F.3d
865, 887 (9th Cir. 2019). Simply put, “[f]ederal law does not
suggest the intent—let alone a ‘clear and manifest’ one—to prevent
states from regulating whether their localities cooperate in
immigration enforcement.” City of El Cenizo v. Texas, 890 F.3d
164, 178 (5th Cir. 2018)

County of Ocean, 475 F. Supp. 3d at 380–81 (alterations in original). I further noted that other
courts that have considered the validity of State restrictions on the sharing of information with
federal immigration authorities have held that such restrictions do not involve “affirmative
interference with federal law enforcement,” but, rather reflect a “choice as to how to devote law
enforcement resources.” Id. at 381 (quoting City of Chicago v. Sessions, 888 F.3d 272, 777 (7th
Cir.), vacated in part, 2018 WL 426817 (2018) (en banc)); see also California I, 314 F. Supp. 3d
at 1105. Accordingly, I determined that, in implementing the Directive, “New Jersey has made
the decision not to cooperate with the enforcement of federal immigration law in an effort to
strengthen the relationship between its communities and police, and shore up more effective
enforcement of state criminal law.” County of Ocean, 475 F. Supp. 3d at 381. Thus, because
Section II.B.5 did not impose a true “obstacle” on the federal government’s execution of federal
civil immigration law, it is not conflict-preempted by the INA.
Nevertheless, the United States again urges that Section II.B.5 “stands as an obstacle to
federal immigration officers’ ability to assume custody of unlawfully present aliens in the manner
Congress intended.” (Opp. Br., at 14.) Indeed, the United States contends that, unlike the plaintiffs
in County of Ocean, they have plausibly alleged that the Directive’s restriction on the sharing of
information with federal immigration officials imposes a true obstacle on the federal government’s
execution of civil immigration law. (Id. at 16.) I remain unconvinced. The United States suggests
that, by declining to provide federal civil immigration authorities with release dates for removable
aliens, New Jersey “hinders federal officials from discharging their duties under the INA.” (Id.)

However, as I explained in County of Ocean, New Jersey’s decision not to cooperate with the
enforcement of federal immigration law is a clear exercise of its police power to regulate the
conduct of its own law enforcement agencies. See California I, 314 F. Supp. 3d at 1105.
The Seventh Circuit’s observation on this issue is salient. In City of Chicago v. Sessions,
the United States argued that Chicago’s Welcoming City Ordinance, which limits the type of
information shared with federal immigration authorities, permitted localities to thwart federal law
enforcement. 888 F.3d at 277. The Seventh Circuit explained that the Welcoming City Ordinance
did not present “any affirmative interference with federal law enforcement at all, nor is there any
interference whatsoever with federal immigration authorities.” Id. at 282. Rather, “[t]he only

conduct at issue . . . is the refusal of the local law enforcement to aid in civil immigration through
informing the federal authorities when persons are in their custody.” Id. That decision is one that
must be left to state and local authorities. Id.; see also California I, 314 F. Sup. 3d at 1105. As I
observed in County of Ocean,
While it may very well be easier for federal law enforcement to
effect removals if it has states’ assistance, that does not change the
clear command of sections 1226 and 1231(a)(1), which place the
burden of complying with the INA on the federal government, not
state and local authorities. Merely because a state law
“inconveniences” the federal government does not render it
preempted—“the repugnance must be ‘so direct and positive that the
two acts cannot be reconciled or consistently stand together.’”
California I, 314 F. Supp. 3d at 1088 (quoting Goldstein v.
California, 412 U.S. 546, 554–55 (1973)). Rather, the fact that the
federal government may, without the cooperation of local law
enforcement agencies, expend extra efforts and resources to
apprehend aliens who are subject to removal, does not create the
kind of “direct” obstacle necessary to trigger conflict preemption.
See id. at 1104 (finding that California's limitations on sharing
information with the federal government was not an obstacle to the
federal government's enforcement of civil immigration law).

County of Ocean, 475 F. Supp. 3d at 382.
Finally, the United States asserts that the Supreme Court’s decision in Arizona reenforces
its position that sections 1226 and 1231(a) preempt the Directive. Arizona, however, has limited
applicability here. In Arizona, the United States challenged an Arizona state law which, among
other things, made it a state misdemeanor offense for failing to comply with federal alien-
registration requirements or to seek or engage in work in the State as an unauthorized alien, and
permitted state and local law enforcement officers “to arrest without a warrant a person ‘the officer
has probable cause to believe . . . has committed any public offense that makes the person
removable from the United States.” 567 U.S. at 394 (alteration in original). The Supreme Court
held that these provisions of the Arizona law were preempted by the INA because they frustrated
the objectives of Congress. Indeed, in finding that the provision that permitted the warrantless of
arrest of aliens, the Court explained that
Congress has put in place a system in which state officers may not
make warrantless arrests of aliens based on possible removability
except in specific limited circumstances. By nonetheless
authorizing state and local officers to engage in these enforcement
activities as a general matter, § 6 creates an obstacle to the full
purposes and objectives of congress.

Id. at 410. Unlike in Arizona, Section II.B.5 does not obstruct the federal government’s objectives,
because the INA, itself, contemplates that state and local governments have “the option, not the
requirement, of assisting federal immigration authorities.” See California II, 921 F.3d at 889; see
also 8 U.S.C. § 1373(a). Simply because New Jersey’s choice in this regard may make it more
difficult for federal law enforcement to detain removable aliens does not, in and of itself, frustrate
the objectives of the INA. Indeed, the Immigrant Trust Directive does not compel state or local
law enforcement officers to interfere with any commands of federal law. More importantly, the
INA simply does not contemplate that States are obligated to assist in the federal government’s
enforcement of civil immigration law.

For these reasons, I find that Section II.B.5 of the Directive is not conflict preempted by
the INA.5
b. Section VI.A
The United States next argues that Section VI.A of the Directive, which requires that “state,
county, and local law enforcement agencies and officials” notify a detained individual when
“federal civil immigration authorities request (1) “[t]o interview the detainee,” (2) “[t]o be notified
of the detainee’s upcoming release from custody,” and (3) “[t]o continue detaining the detainee
past the time he or she would otherwise be eligible for release,”6 Directive No. 2018-6 § VI.5, is
conflict-preempted by the INA. The United States further argues that this section of the Directive

directly interferes with the enforcement, and frustrates the full effectiveness, of federal civil
immigration law as it “serve[s] to alert aliens that ‘federal civil immigration authorities’ may be
interested in detaining them.” (Opp. Br., at 19.)

5 The Court declines to address the parties’ arguments with respect to sections 1226 and
1231 and the anticommandeering doctrine because “those sections do not apply to state actors and
place obligations solely on the federal government.” County of Ocean, 475 F. Supp. 3d at 380
n.22. The anticommandeering doctrine, which emerges from the Tenth Amendment, provides that
“the Federal Government may not compel the States to implement, by legislation or executive
action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997); see also
Murphy, 138 S. Ct. at 1475–76. Because sections 1226 and 1231 do not place any obligations on
state officials, the anticommandeering doctrine plays no rule in the Court’s preemption analysis.

6 Whether Section VI.A of the Directive violates the Supremacy Clause was not raised in
County of Ocean.
In defense of Section VI.A, Defendants contend that the notification provisions cannot be
preempted because they “exclusively govern[] the relationship and communications between a
local law enforcement agency and its detainees.” (Moving Br., at 36.) In that regard, Defendants
maintain that the INA cannot bar an “individual officer from telling any detainee that civil
immigration authorities seek to interview her, find out her release date, or have her detained past

the time she is eligible for release.” (Id.) It follows, they argue, that a State policy requiring the
same notifications similarly does not conflict with the INA. (Id.)
The Supreme Court has explained that “[i]mplied preemption analysis does not justify a
‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’”;
[as] such an endeavor ‘would undercut the principle that it is Congress rather than the courts that
pre-empts state law.’” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 607 (2011)
(quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 11 (1992) (Kennedy, J., concurring
in part and concurring in judgment)). In that regard, “a high threshold must be met if a state law
is to be preempted for conflicting with the purposes of a federal Act.” Id. (quoting Gade, 505 U.S.

at 110).
Here, the United States has not made such a showing. In essence, the Government’s
argument is that Section VI.A “stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress” because it “tips off” “a soon-to-be released alien that
federal officers will seek to detain him or her.” (Opp., at 21 (quoting Arizona, 567 U.S. at 399.)
In that connection, the United States posits that Section VI.A should be preempted because it will
hinder federal officers in their efforts to detain aliens and, moreover, “permit[s] Defendants to help
aliens evade federal immigration enforcement.” (Id.) The United States, however, fails to provide
any support for this speculative position that by providing an alien with adequate notice that federal
immigration authorities have requested information, seek to interview, or detain him, will
somehow assist aliens with avoiding removal. Such a vague and unsupported assertion cannot
serve as a basis to preempt a state law. As the Court made plain in County of Ocean, merely
because providing notice to detainees may theoretically lead to “law enforcement agencies [having
to] expend extra efforts and resources to apprehend aliens who are subject to removal, does not

create the kind of ‘direct obstacle’ necessary to trigger conflict preemption.” 475 F. Supp. 3d at
382.
For example, in California I, the Eastern District of California found that a state law that
required employers to notify their employees “of any inspections of I-9 Employment Eligibility
Verification forms or other employment records conducted by an immigration agency within 72
hours of receiving notice of the inspection” was not preempted by the Immigration Reform and
Control Act of 1986 (“IRCA”). 314 F. Supp. 3d at 1096–97 (quotation omitted). The United
States argued that this notice provision was “an obstacle to the implementation of federal law by
aiming to thwart immigration regulation” as it would alert targets of investigation as to the status

of the United States’ enforcement efforts. Id. at 1097. The California I court declined to adopt
the United States’ “cynical view of the law” and found that simply notifying employees of an
inspection was not an attempt to thwart the goals of the IRCA. Id.
Similarly here, Section VI.A of the Directive was not intended to obstruct the United
States’ efforts to enforce immigration law. Rather, as consistent with the overall purposes of the
Directive, Section VI.A is aimed at building trust between New Jersey’s immigrant communities
and state and local law enforcement. Indeed, each notification requirement is linked to other
provisions of the Directive. For example, the requirement that law enforcement notify a detainee
of an interview request from the federal government is necessary to obtain the individual’s consent
to be interviewed. See Directive No. 2018-6 § II.B.4 (providing that New Jersey law enforcement
officers may only provide immigration authorities “access to a detained individual for an
interview: when that individual has consented”).7 Simply put, Section VI.A of the Directive does
not expressly thwart the enforcement of federal civil immigration law. As such, the Court cannot
find that Section VI.A is conflict-preempted by the objectives of the INA.

ii. Express Preemption
Next, the United States contends that Section II.B.5 of the Immigrant Trust Directive is
expressly preempted by 8 U.S.C. § 1373(a), which provides that a “[s]tate . . . 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, [federal immigration officials] information regarding the citizenship
or immigration status, lawful or unlawful, of any individual.” More specifically, in that context,
the United States argues that the phrase “information regarding [an individual’s] citizenship status”
should be broadly construed to include providing “notice of a detained individual’s upcoming
release from custody.” (See Opp. Br., at 26.) While the United States recognizes that this Court

rejected that exact contention in County of Ocean, it urges the Court reconsider that ruling.
In County of Ocean, I determined that section 1373(a) did not expressly preempt the
Directive for two reasons. First, based on the Supreme Court’s holding in Murphy, 138 S. Ct.
1461, I determined that section 1373(a) did not constitute a valid preemption provision:
It is well-established that express preemption “arises when there is
an explicit statutory command that state law be displaced.” St.
Thomas—St. John Hotel & Tourism Ass'n, Inc. v. Gov't of the U.S.
Virgin Islands, 218 F.3d 232, 238 (3d Cir. 2000) (quoting Morales
v. Trans World Airlines, Inc., 504 U.S. 374 (1992)). Indeed, in
Murphy, the Supreme Court clarified that all three types of
preemption “work in the same way: Congress enacts a law that
imposes restrictions or confers rights on private actors; a state law

7 The United States has not challenged the validity of § II.B.4 of the Directive.
confers rights or imposes restrictions that conflict with the federal
law; and therefore the federal law takes precedence and the state law
is preempted.” 138 S. Ct. at 1480. In Murphy, the Court determined
that the Professional and Amateur Sports Protection Act
(“PASPA”), which barred states from adopting legal sports
gambling schemes, did not constitute a preemption provision
because there was “no way in which this provision can be
understood as a regulation of private actors.” Id. at 1481. Sections
1373(a) and 1644 are similar to PAPSA, in that, these sections
regulate only state and local governments and do not, in any way,
regulate private actors. Indeed, in the wake of Murphy, several
district courts have found that §§ 1373(a) and 1644 are not
preemption provisions because “[b]y their plain terms, the
provisions affect state and local government entities and officials;
they do not regulate private actors as Murphy requires for
preemption.” Colorado v. U.S. Dep't of Justice, 455 F. Supp. 3d
1034, 1059, (D. Colo. Apr. 23, 2020); see also Oregon v. Trump,
406 F. Supp. 3d 940, 972 (D. Or. 2019) (observing that “by their
terms, Sections 1373 and 1644 affect only state and local
government ‘entit[ies]’ and ‘official[s]’”); City & Cty. of San
Francisco v. Sessions, 349 F. Supp. 3d 924, 950 (N.D. Cal. 2018)
(“Section 1373 ... does not regulate private actors or provide private
actors with any additional rights in the INA's statutory scheme.
DOJ's preemption argument fails on this distinction.”).

County of Ocean, 475 F. Supp. 3d at 372. Thus, because section 1373(a) governs only the sharing
of information between the federal government and state and local officials, and does not regulate
private actors in any way, I held that the provision could not act as preemption provision. Id. This
alone, I noted, was a “death knell” to the position that section 1373(a) expressly preempts Section
II.B.5 of the Directive.
Nevertheless, because of the significant constitutional interests raised in County of Ocean,
I further considered whether the Directive’s information sharing provisions conflict with sections
1373(a) and 1644. Id. at 372–73. In this regard, I observed that “[t]he key to determining whether
the information sharing provisions of the Directive as expressly preempted by sections 1373(a)
and 1644 is understanding the scope of the phrase ‘information regarding the citizenship or
immigration status’ of any individual.” Id. at 373 (quoting § 1373(a)). Accordingly, I looked to
the plain-meaning of sections 1373(a) and 1644, which “reflects that the only information that
state and local governments are required to share is the legal status—i.e., citizenship or
immigration status—of an individual.” Id. at 375. In reaching this conclusion, I was persuaded
by the decisions of other courts that have also considered the breadth of sections 1373(a) and 1644.
I noted,

Recently, and relevant here, a number of courts have considered the
language of sections 1373(a) and 1644, and their scope relating to
the type of information to be shared by state and local agencies. In
California II, the Ninth Circuit considered the validity of the
California Values Act, which “limits law enforcement's ‘discretion
to cooperate with immigration authorities.’” 921 F.3d at 876.
Substantially similar to the Directive, the California Values Act,
inter alia, prohibits state and local law enforcement agencies from
sharing with federal immigration authorities personal identifying
information, such as “the individual’s home address or work
address,” or “information regarding a person's release date.” Id.
(quoting Cal. Gov’t Code § 7285.6(a)(1)). There, the United States,
likewise, argued that section 1373 directly conflicts with the
restrictions of the information set forth in the California Values Act,
and insisted that Congress’s inclusion of the term “regarding” in
section 1373 indicated that the statute should be broadly construed
to preempt the California law. Id. at 892–93. The Ninth Circuit
acknowledged that, generally speaking, phrases like “regarding”
have “a broadening effect, ensuring that the scope of a provision
covers not only its subject but also matters relating to that subject.”
Id. at 891–92 (quoting Lamar, Archer & Cofrin, LLP v. Appling, 138
S. Ct. 1752, 1759–60 (2018)). However, it observed that “if the term
‘regarding’ were ‘taken to extend to the furthest stretch of its
indeterminacy, then for all practical purposes preemption would
never run its course, for [r]eally, universally, relations stop
nowhere.’” Id. (alteration in original) (quoting N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645, 655 (1995)). Rejecting the United States’ strained
reading of § 1373, the California II court held that the phrase “is
naturally understood as a reference to a person's legal classification
under federal law.” Id. at 891. While the Ninth Circuit did not reach
the issue of whether section 1373 violates the anticommandeering
doctrine of the Tenth Amendment, id. at 893 n.19, the district court
found its constitutionality “highly suspect” because it “dictate[s]
what states may and may not do.” California I, 314 F. Supp. 3d at
1101. . . .
Courts have also considered the scope of section 1373 in the context
of the Edward Byrne Memorial Justice Assistance Grant (“Byrne
Grant”) Program, through which the federal government provides
financial assistance to states and localities for criminal justice
purposes. See City & Cty. of San Francisco, 349 F. Supp. 3d at 967;
City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 295 (E.D. Pa.
2018), aff’d in part and vacated in part on other grounds, 916 F.3d
276 (3d Cir. 2019). As conditions of receiving a Byrne Grant, a
locality must provide ICE with advance notice of release dates of
inmates and certify its compliance with section 1373. City of
Philadelphia, 309 F. Supp. 3d at 295. A number of states and
municipalities across the country have challenged these conditions
on the grounds that they violate the Tenth Amendment. For
example, in City of Philadelphia, the United States argued that
section 1373 requires localities to “provide advance notice of release
from City custody” based on a broad interpretation of the phrase
“information regarding . . . citizenship or immigration status.” Id.
at 331. The court rejected this position, finding that the United
States’ reading of the statute was “simply impossible to square with
the statutory text.” Id. Indeed, the court held that the plain meaning
of the phrase “citizenship or immigration status,” means “an
individual’s category of presence in the United States—e.g.,
undocumented, refugee, lawful permanent resident, U.S. citizen—
and whether or not an individual is a U.S. citizen, and if not, of what
country.” Id.

In reaching this conclusion, the City of Philadelphia court relied on
the Northern District of California's decision in Steinle v. City & Cty.
of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017). Steinle
involved a suit brought pursuant to 42 U.S.C. § 1983 by the
surviving relatives of a woman who was killed by an undocumented
man after he had been released from the custody of the San
Francisco's Sheriff's Department. Id. at 1004. Prior to his release,
ICE had sent a detainer request to the Sheriff's Department seeking
advance notice of his release date so ICE could take custody of him.
Id. The Sheriff’s Department did not respond to the detainer
because of city policy. Id. Plaintiffs alleged that the City was per
se negligent, partly because it failed to comply with § 1373, which
provision, plaintiffs asserted, required the city to provide advance
notice of an inmate’s release to ICE. Id. at 1005. The Steinle court
dismissed this claim, as it found that “[n]othing in 8 U.S.C. §
1373(a) addresses information concerning an inmate’s release date.”
Id. at 1015. The same conclusion was reached by the court in City
& Cty. of San Francisco, 349 F. Supp. 3d at 967–98 (“I agree with
the other district courts that found Section 1373 would support only
a narrow interpretation that extends to ‘information strictly
pertaining to immigration status (i.e., what one’s immigration status
is).’”).

County of Ocean, 475 F. Supp. 3d at 374–76 (footnotes omitted).

Here, the United States has not proffered any other reasons why this Court should come to
a different conclusion. First, the United States contends that the Court’s narrow interpretation of
section 1373(a) “gives short shrift to recent Supreme Court precedent instructing that ‘regarding’
is a word of breadth.” (Opp. Br., at 28 (citing Lamar, 138 S. Ct. at 1759–60).) I addressed this
position in County of Ocean. While I acknowledge that the term “regarding” often has a
broadening effect, this Court remains unconvinced that Congress intended it to have such an effect
here. Indeed, if the phrase “information regarding immigration status” were given the broad
meaning advocated for by the United States, there would be no information that would not be
encompassed by the statute and “the United States would impermissibly expand the scope of these
statutes to sweep in any information, including personal identifying data, concerning an alien in
the United States.” County of Ocean, 475 F. Supp. 3d at 375. “Rather, plainly, the phrase
‘regarding the citizenship or immigration lawful or unlawful of any individual’ means just that—
information relating to the immigration status of an alien, including his/her citizenship.” Id. at
376.8

8 Again, in a repeat of Ocean County, the United States argues that the broadening effect of
“regarding” is evident when section 1373(a) is contrasted with 1373(c). Section 1373(c) imposes
an obligation on the federal government to respond to any inquiry from state or local government
agencies 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. The United States again
argues that that “Congress’ inclusion of ‘regarding’ in Section 1373(a), juxtaposed with its
omission of such a term in an otherwise-parallel provision of the same statute, indicates that
‘Congress intended a difference in meaning.” (Opp. Br., at 27 (quoting Loughrin v. United States,
573 U.S. 351, 358 (2014).) Again, as set forth above, a plain reading of section 1373(a)
demonstrates that the section contemplates only the sharing of information reflecting an
individual’s legal status in the United States. Moreover, as I highlighted in County of Ocean, “the
The United States further posits the legislative history of section 1373 supports their
position. As I found in County of Ocean, because “the plain language of sections 1373 and 1644
is clear, there is no basis to go behind the language and delve into the legislative history.” 475 F.
Supp. 3d at 376 n.19; see also Whiting, 563 U.S. at 599 (“Congress’s ‘authoritative statement is
the statutory text, not the legislative history.’” (quoting Exxon Mobile Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 568 (2005)); Steinle, 230 F. Supp. 3d at 1104 (declining to consider legislative
history of section 1373 because of the clarity of the statutory text). This remains true. The United
States has offered the Court no reason to look behind the plain language of sections 1373 and
1644.9
For these reasons, I once again conclude that Section II.B.5 of the Immigrant Trust
Directive is not expressly preempted by the INA.
B. Intergovernmental Immunity
Finally, the United States contends that both Sections II.B.5 and VI.A “violate the
Supremacy Clause by obstructing federal immigration operations and discriminating against

federal immigration authorities.” (Compl. ¶ 41.) In other words, the United States maintains that

fact that subpart (c) only concerns itself with immigration status suggests, given § 1373’s focus on
reciprocal communication between states and the federal government, that immigration status is
the extent of subpart (a)’s reach as well.” 475 F. Supp. 3d at 373 n.15 (quoting California II, 921
F.3d at 892).

9 Further, if the Court were to adopt the United States’ reading of section 1373, it would
likely run afoul of the Tenth Amendment’s anti-commandeering doctrine. As I determined in
County of Ocean, if “sections 1373(a) and 1644 were broadly construed to cover all types of
information possibly related to the enforcement of immigration law,” they “would ‘unequivocally
dictate[] what a state legislature may and may no do.’” 475 F. Supp. 3d at 378–79 (quoting
Murphy, 138 S. Ct. at 1478). Nevertheless, the United States once again argues that there exists
an “information-sharing” exception to the anticommandeering doctrine. (Opp. Br., at 34–37.)
This Court, however, has declined to find that such an exception exists. See County of Ocean, 475
F. Supp. 3d at 378 n.21.
these provisions violate the doctrine of intergovernmental immunity.
The principles of intergovernmental immunity were first set forth by the Supreme Court in
McCulloch v. Maryland, in which it held that “the States have no power, by taxation or otherwise,
to retard, impede, burden, or in any manner control, the operations of the constitutional laws
enacted by Congress to carry into execution the powers vested in the national government.”

Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382, 40910 (3d Cir. 2012) (quoting
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 322 (1819)). In other words, a state law or
regulation is invalid pursuant to the doctrine of intergovernmental immunity “only if it regulates
the United States directly or discriminates against the Federal Government or those with whom it
deals.” North Dakota v. United States, 495 U.S. 423, 435 (1990).
In County of Ocean, the Court briefly addressed the issue of intergovernmental immunity.10
There, I found that the doctrine of intergovernmental immunity did not invalidate the information
sharing provisions of the Directive because “there is no question that the Directive does not
regulate the United States directly; it regulates only the conduct of state and local law enforcement

agencies in the State of New Jersey.” County of Ocean, 475 F. Supp. 3d at 385. Moreover, I found
that the United States had “failed to demonstrate how the Directive ‘discriminates’ against it” or
to allege any similarly situated law enforcement agency with which New Jersey permits its law
enforcement to share inmate release dates. Id.
Here, the arguments of the United States face the same shortcomings. First, the United
States has failed to demonstrate that Sections II.B.5 and VI.A of the Directive regulate or

10 In County of Ocean, the issue of intergovernmental immunity was raised only by the United
States in its Statement of Interest. While I questioned whether the issue was properly raised, I
nevertheless addressed the merits of the United States’ arguments. See County of Ocean, 475 F.
Supp. 3d at 384–85.
discriminate against the federal government. Indeed, as the Ninth Circuit explained in California
II, “[s]ince the advent of the doctrine, intergovernmental immunity has attached where a state’s
discrimination negatively affected federal activities in some way. It is not implicated when a state
merely references or even singles out federal activities in an otherwise innocuous enactment.” 921
F.3d at 881. Here, the Directive regulates only state and local law enforcement agencies. Indeed,

if the Court were to accept the United States’ position—that because the Directive limits the ability
of state and local agencies to assist with the enforcement of federal civil immigration, it
discriminates against the Federal Government—state participation in such efforts would no longer
be voluntary. See, e.g., California I, 314 F. Supp. 3d at 1111 (finding that California limitation on
information sharing with the federal government did not violate doctrine of intergovernmental
immunity because “the purported ‘burden’ is California’s decision not to help the Federal
government implement its immigration enforcement regime”).
Nor has the United States demonstrated that the Directive treats any similarly situated
parties better than the federal government. Indeed, the United States contends that the Directive

“singles out the Federal Government for disfavored treatment” by placing limits on
communications from state and local law enforcement officers to federal civil immigration
authorities, but not on communications to criminal law enforcement agencies. (Opp. Br., at 3–4.)
This distinction, however, bears no weight because civil immigration operations and criminal law
enforcement are not similarly situated. Rather, the United States is required to identify examples
“of similarly situated authorities (i.e., civil law enforcement agencies) that the State treats better
than it does federal immigration authorities.” California I, 314 F. Supp. 3d at 1111 (emphasis
added). It has not done so.
Accordingly, the Court finds that the Directive does not run afoul of the doctrine of
intergovernmental immunity as the Directive neither regulates the United States nor discriminates
against it.
IV. CONCLUSION
For the reasons set forth herein, Defendants’ Motion to Dismiss is GRANTED and the
United States’ Complaint is DISMISSED.

DATED: January 26, 2021 /s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269846. Public record. Not legal advice.