- DOJ says a federal immigration reporting requirement applies to all component agencies of states participating in TANF, not only agencies administering benefits.
- New Jersey law restricts state and local law enforcement participation in federal civil immigration enforcement, creating a potential conflict with the federal interpretation.
- DOJ has warned that failure to comply with federal requirements could carry consequences including loss of program funding, but no funding cutoff or invalidation of New Jersey law has occurred.
TRENTON, NJ — A new U.S. Department of Justice legal opinion could set up a major confrontation with New Jersey over immigration enforcement, with federal officials asserting that all agencies of states accepting certain federal benefits funding must report people they know are unlawfully present in the United States.
The Justice Department’s Office of Legal Counsel issued the interpretation Sept. 1, reversing a federal position dating to 1998 that had essentially limited the reporting requirement to state agencies administering Temporary Assistance for Needy Families or Supplemental Security Income. Under the new interpretation, DOJ says the word “State” encompasses the entire state government and “includes all component agencies.”
That interpretation could have significant consequences in New Jersey, where Gov. Mikie Sherrill signed legislation March 25 codifying protections that restrict state and local law enforcement involvement in federal civil immigration enforcement. New Jersey’s policies generally restrict officers from asking about immigration status and from taking enforcement action solely on that basis.
The federal opinion does not invalidate New Jersey’s law or direct police to begin questioning people about their immigration status. Instead, DOJ maintains that when a component agency of a TANF-participating state knows someone is unlawfully present, federal law requires that information to be reported to the Department of Homeland Security.
DOJ also challenged a longstanding federal standard governing what constitutes “knowledge” of unlawful presence. According to the opinion, sufficient knowledge could arise when DHS provides status information, a person acknowledges entering unlawfully without a lawful basis to remain, immigration records show a status has expired or been terminated, or documents available to an agency establish the person’s lack of lawful status. The opinion further argues that agencies cannot deliberately disregard readily available information to avoid acquiring such knowledge.
That could become a key point of dispute in New Jersey because state policy intentionally limits circumstances in which law enforcement officers inquire into immigration status. The two policies are not automatically contradictory — restricting officers from asking about immigration status differs from prohibiting disclosure of information already known — but the new federal interpretation creates the possibility of a legal clash over how both requirements can operate simultaneously.
The potential financial consequences could raise the stakes. DOJ has warned that states accepting TANF funding must comply with federal requirements and that noncompliance could result in consequences that include loss of program funding. The OLC opinion also notes that states may reconsider participation in TANF or SSI following the change in interpretation.
The opinion is prospective, meaning states are not expected to face penalties for following the federal government’s previous interpretation before the change. Federal agencies may now revise grant agreements and compliance procedures to implement the new position.
For New Jersey, several major questions remain unanswered, including whether the Sherrill administration believes the federal interpretation conflicts with state law, whether State Police or local departments will receive new guidance, whether federal officials have threatened specific New Jersey funding and whether the state will challenge the interpretation in court.
The development comes months after Sherrill strengthened New Jersey’s restrictions on cooperation with federal civil immigration enforcement, including signing the March legislation and taking other actions involving ICE operations in the state.
