Justice Department expands state immigrant reporting requirements

The Justice Department is seeking to require every state government to report undocumented immigrants to federal authorities if the state accepts federal funds for major safety-net programs, reversing a Clinton-era legal interpretation that had narrowed the requirement for nearly three decades.

The department’s Office of Legal Counsel issued the new interpretation this week, saying states that participate in Temporary Assistance for Needy Families or Supplemental Security Income must report people who are not lawfully present in the United States to the Department of Homeland Security. The requirement would apply across an entire state government, not only to the specific agencies that administer the programs.

Every state receives federal funding through TANF and SSI, which are among the country’s largest programs assisting low-income families, elderly residents and people with disabilities.

The opinion withdraws a 1998 interpretation issued during the Clinton administration. That earlier reading limited the reporting obligation to the state agency directly responsible for running the federal program involved. The Justice Department said Wednesday that states will not face retroactive penalties for relying on the 1998 interpretation, but it expects them to follow the new opinion going forward.

Deputy Assistant Attorney General Joshua Craddock, who wrote the new opinion, said the earlier interpretation was legally flawed. “We are forced to conclude that our prior opinion erred in its analysis and result,” he wrote.

Craddock also rejected the argument that Congress’s failure to amend the law over the years amounted to approval of the narrower interpretation. “The fact that subsequent congresses have not affirmatively corrected the 1998 Opinion’s interpretation of section 404 does not alter the plain meaning of the statute,” he wrote.

Assistant Attorney General T. Elliot Gaiser defended the change, tying it to the Trump administration’s broader immigration enforcement agenda. “When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States,” Gaiser said. “Tax dollars intended to help vulnerable Americans should not perversely encourage illegal entry into the United States, but rather should reinforce our laws and our borders.”

The new policy will not apply retroactively. Craddock wrote that the opinion “cannot retroactively alter agreements” made under the prior interpretation because “the parties to those agreements had different understandings of states’ reporting obligations.” States that object to the new requirement, he wrote, remain free to withdraw from the programs.

The opinion also addresses when a state can be said to “know” a person is undocumented. The Guardian reported that a 2000 federal regulation had required a formal legal finding, confirmed by immigration authorities, before that standard was met. Craddock wrote that the bar was too high, saying in a footnote that an agency cannot avoid its obligation “by deliberately refusing to consider readily available information or by insisting on a formal adjudication that the statute nowhere requires.”

The new interpretation is likely to draw legal challenges, particularly from Democratic-led states. NBC News reported that state attorneys general in several states have already resisted previous Trump administration efforts to force local agencies to share immigration-status information with the federal government and other immigration enforcement measures.