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7th Circuit scrubs en banc hearing on welcoming ordinance

August 14, 2018

Although the 7th Circuit Court of Appeals has cancelled an en banc hearing to reconsider a nationwide injunction that protected welcoming ordinances across the country, it left the door open for the U.S. Attorney General to file a new challenge to what the Trump administration terms sanctuary cities.

Oral arguments in City of Chicago v. Sessions, 17-2991, were scheduled for Sept. 6, but the 7th Circuit has since vacated its decision to rehear the case. In its four-page order, the appellate court noted while the federal government filed an interlocutory appeal to the preliminary injunction then submitted a petition for rehearing, the case was continuing in the U.S. District Court for the Northern District of Illinois and concluded with the imposition of a permanent nationwide injunction.

The Northern Illinois District Court did stay the injunction pending a ruling from the 7th Circuit and the parties presented the appellate court with new motions and appeals. Rather than allowing “piecemeal appeals,” the 7th Circuit scrubbed the en banc hearing for the preliminary injunction.

“Our denial of the motion for initial partial hearing en banc is without prejudice to the Attorney General’s ability to file another appeal once the district court has issued a final judgment,” the 7th Circuit wrote. “The court is prepared to expedite its consideration of any such appeal, if and when one is filed.”

The case originated when the city of Chicago challenged the changes imposed by the Department of Justice in May 2017 on the Edward Byrne Memorial Justice Assistance Grant Program, which provides federal money to local law enforcement agencies.

Among the changes, the justice department mandated that municipalities receiving the grant notify and give access to Immigration and Customs Enforcement agents to “aliens” being held in local correctional facilities. The attorney general used the term “sanctuary jurisdictions” to describe those jurisdictions that “willfully” refused to comply with the order.

Chicago claimed those new conditions conflicted with its Welcoming City Ordinance. The ordinance was enacted to recognize the many immigrants in the city and build a cooperative relationship in protecting life and preventing crime. Also, the ordinance prohibited law enforcement from holding and giving federal authorities access to an alien or a suspected alien who did not have an outstanding criminal warrant, or was not a convicted felon, a defendant or a gang member.

The Northern Illinois District Court granted the city’s motion for preliminary injunction and concluded a nationwide preliminary injunction was required to provide full relief.

On appeal of the preliminary injunction, a split 7th Circuit panel found the district court did not abuse its discretion and affirmed the preliminary injunction. The Attorney General responded by filing a petition for rehearing en banc.

Since the 7th Circuit cancelled the rehearing, the Attorney General has not made any public statements as to how it intends to proceed.

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