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| Marc Levin |
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| Khalil Cumberbatch |
The U.S. Department of Justice quietly issued a directive, originally set to take effect on Oct. 31, that prohibits federal grants from funding services such as counseling, relocation assistance and medical care for crime victims who are unable to immediately prove their immigration status.
These vital services, often delivered by community-based organizations and supported by federal grants, are critical lifelines for violent crime survivors, including those victimized by domestic abusers.
The directive targets three major federal grant programs: the Victims of Crime Act, Violence Against Women Act and Edward Byrne Memorial Justice Assistance Grant Program.[1] The edict, which was issued without the standard public comment process, was challenged in court on Oct. 1 by more than 20 state attorneys general.[2]
The suit — styled State of New York v. DOJ and filed in the U.S. District Court for the District of Rhode Island — argues that the new administratively imposed condition is unconstitutional because it usurps Congress' spending power, given that Congress did not impose this funding restriction.[3] It also contends that the condition is arbitrary and capricious, ambiguous in its language, and imposed without following the required procedures of administrative rulemaking.
The DOJ agreed on Oct. 6 not to enforce the condition until Nov. 14,[4] giving the court time to consider the plaintiffs' motion for injunctive relief and the government's response.[5]
Amid the constitutional, legal and jurisdictional questions lies this important truth: This directive could silence victims whose input is pivotal for authorities seeking to put violent offenders behind bars. Among the victims receiving such services are those helping police and prosecutors bust kingpins who lead drug trafficking networks.
In addition to legal advice, the services at issue include counseling, emergency relocation, and medical treatment for injuries suffered during a violent assault.
By conditioning access to these services on proof of immigration status, the new edict that was added to the DOJ's Financial Grants Guidelines reduces the incentive for victims of crime who cannot prove their immigration status to cooperate with law enforcement.[6] This could result in detectives and prosecutors being unable to bring an otherwise valid case against a drug lord or domestic abuser, thereby enabling the perpetrator, who themselves could be undocumented, to continue menacing the same victim and the public.
Traditionally, protecting crime victims who are undocumented has been a rare issue that bridges partisan divides.[7] That consensus reflects that justice and safety depend on participation, not paperwork.
The new directive also raises legal concerns that cannot be ideologically pigeonholed. For decades, proponents of originalism have rightly extolled the virtues of federalism, including limiting the federal government to its enumerated powers so that states can serve as laboratories of innovation.[8] Indeed, in 2015, the Obama administration faced litigation from Florida, Kansas and Texas in Scott v. U.S. Department of Health and Human Services[9] — filed in the U.S. District Court for the Northern District of Florida — alleging that the threatened withholding of federal Medicaid funds was being used to coerce them into expanding Medicaid.[10]
Now that the shoe is on the other foot, the problem remains the same. Given that the federal government spent $6.73 trillion in 2024[11] and is on track to spend even more this year,[12] federal funding streams are so large that, absent any consistent legal limiting principle, executive conditions on federal grants can too easily become a tool for coercing states into a policy straitjacket that depends on which party controls the presidency.
Though it's unclear how relevant U.S. Supreme Court precedents would apply in the legal challenge to this edict,[13] it seemingly erodes the U.S. Constitution's framework for federalism.[14]
While the Supreme Court's landmark 1987 decision in South Dakota v. Dole held that Congress can condition federal funds on states' adoption of a policy, so long as the funds are related and the provision is not coercive, it also required that the condition be clearly expressed in statute.[15]
Here, however, the executive branch appears to be attempting to add by fiat a condition that Congress opted not to include in the statutes and appropriations governing grants for victims' services.
The new edict also raises a separate legal problem. Not only does its restriction add a new requirement to statutes on federal grant programs that Congress never authorized, it also contravenes a regulation, the Victims of Crime Act Victim Assistance Program, adopted through the formal rulemaking process in 2016.[16] This rule added language to Title 28 of the Code of Federal Regulations, Part 94, expressly stating that all victims should be served, regardless of legal status.
Regulations are, of course, distinct from statutes, and it is entirely proper for one administration to eliminate or revise a regulation favored by a prior one. Doing so, however, requires following the Administrative Procedure Act, which ensures there is time for public comment on proposed rules and an analysis of the costs and benefits involved.[17] In this instance, the attorneys general allege that the act has not been followed, and that the administration is seeking to retroactively apply this new condition on victims' services funding.
Apart from the legal issues in play, there are also multiple substantive concerns about this new directive.
First, it's impractical. Determining a person's legal status is often complex. Particularly in cases of domestic violence or sexual assault, many survivors lack ready access to documentation proving immigration status, often by the design of abusers who control, hide or withhold documents.[18]
The edict also creates an ethical quandary for the nonprofit organizations that contract with law enforcement to provide victims services. Asking such organizations to check the papers of people they are trying to help is, at best, awkward, and it requires them to perform legal work for which they are not typically trained. Indeed, the Personal Responsibility and Work Opportunity Reconciliation Act prohibits nonprofit organizations from being required to verify eligibility for federal benefits.[19]
More broadly, the new rule is difficult to square with the overriding goal of promoting public safety. Research indicates that victims who receive services are more likely to cooperate with police and prosecutors, even when it exposes them to danger.[20] Such cooperation can be essential for apprehending and prosecuting dangerous offenders, including the very human traffickers who exploit holes in our nation's borders.
Denying services to undocumented victims makes others in the community, including U.S. citizens, more vulnerable to the same perpetrators.
Finally, withholding help from crime victims unable to prove their immigration status is unjust. This is especially true for those who have followed the legal process for obtaining a U visa, designed specifically for victims of the most egregious crimes.[21]
To qualify for a U visa, which provides temporary legal status for up to four years, applicants must obtain a formal certification from a law enforcement agency. But even after having done so, and while continuing to provide valuable information to police and prosecutors, U visa applicants were made subject to deportation through a U.S. Immigration and Customs Enforcement memorandum[22] issued earlier this year.[23] They would be ineligible for services under this new policy while waiting for their visa application to be processed.
The potential effects of this policy are both troubling and in tension with the administration's laudable commitment to fighting drug cartels[24] and human trafficking.[25] This suggests that the DOJ leadership does not intend to neglect victims of crime who are undocumented, but sees this policy change as furthering the administration's worthy goal of discouraging illegal immigration.
However, this rationale has two shortcomings. First, the administration has argued — with considerable merit — that illegal immigration has already been deterred. In Sept. 15 remarks, President Donald Trump declared the border secure and said illegal crossings are virtually zero.[26]
Indeed, U.S. Customs and Border Protection announced in September that there were 96% fewer Border Patrol apprehensions on the U.S.-Mexico border in August as compared to the previous administration's monthly average.[27] Accordingly, this new funding condition is not needed to deter illegal immigration.
Moreover, while those opposed to both illegal and legal immigration have claimed that social benefits, such as public education,[28] are magnets for migration, it would be far-fetched to assert that any person would seek to become a victim of a serious crime in order to receive such benefits.
It is not yet clear whether states that are not part of the lawsuit are willing and able to comply with this requirement. What is clear is that it is possible to achieve three important goals at once: adhering to federalism and the rule of law, securing the border, and serving all victims of crime.
As this administration has shown, the executive branch has no shortage of levers for making changes to immigration policy that have wide-scale effects, and Congress is empowered to revise immigration laws. Separating immigration policy from our approach to serving victims of crime is the best way to ensure public safety and equal justice, while avoiding unintended consequences.
Marc A. Levin is chief policy counsel, and co-leader of the Centering Justice Initiative, at the Council on Criminal Justice.
Khalil Cumberbatch is director of engagement and partnerships, and co-leader of the Centering Justice Initiative, at CCJ.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.reuters.com/legal/government/states-sue-over-us-justice-departments-new-restrictions-grants-domestic-violence-2025-10-01/?utm.
[2] https://www.washingtonpost.com/national-security/2025/10/01/justice-department-attorneys-general-crime-victims-funds/?utm.
[3] https://portal.ct.gov/-/media/ag/press_releases/2025/voca.pdf?rev=2abcb2014156440997639bef56100ab8&hash=9825838F70C1138C122E8DD81C3D80AB.
[4] https://www.courtlistener.com/docket/71516975/state-of-new-york-v-united-states-department-of-justice/.
[5] In other cases challenging the administration's attempts to revoke federal grants or place new conditions on them, DOJ has argued for an expansive interpretation of executive power and maintained that jurisdiction over any litigation involving federal grants lies with the U.S. Court of Federal Claims. In a September 2 opinion in Climate Fund, et al. v. Environmental Protection Agency, et al., the D.C. Circuit agreed, vacating the district's court's injunction on the administration's cancellation of environmental grants and remanding the case, ostensibly for transfer or refiling with Federal Claims Court.
[6] https://www.ojp.gov/funding/financialguidedoj/iii-postaward-requirements.
[7] Conservative lawmakers such as South Carolina Senator Lindsey Graham and organizations like the Niskanen Center have long supported efforts to ensure that survivors, regardless of their immigration status, can safely report crimes and assist in prosecutions.
[8] https://www.heritage.org/conservatism/report/federalism-crisis-urgent-action-required-preserve-self-government.
[9] https://www.cbsnews.com/miami/news/texas-kansas-to-back-florida-lawsuit-against-obama-administration/.
[10] https://dockets.justia.com/docket/florida/flndce/3:2015cv00193/80849.
[11] https://fiscaldata.treasury.gov/americas-finance-guide/federal-spending/.
[12] https://www.crfb.org/press-releases/treasury-confirms-spending-142-billion-2025.
[13] https://www.stevevladeck.com/p/121-spending-coercion-and-commandeering.
[14] https://statecourtreport.org/our-work/analysis-opinion/how-constitution-constrains-presidential-overreach-against-states.
[15] https://tile.loc.gov/storage-services/service/ll/usrep/usrep483/usrep483203/usrep483203.pdf.
[16] https://www.federalregister.gov/documents/2016/07/08/2016-16085/victims-of-crime-act-victim-assistance-program.
[17] https://www.congress.gov/crs-product/R41546.
[18] https://www.atg.wa.gov/news/news-releases/washington-among-states-suing-doj-protect-services-crime-survivors?utm.
[19] https://www.nilc.org/articles/what-new-federal-notices-mean-for-immigrants-program-eligibility/.
[20] https://digitalcommons.longwood.edu/cgi/viewcontent.cgi?article=1180&context=rci_spring.
[21] https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status.
[22] https://www.nbcnews.com/news/latino/immigrants-u-visas-deportation-new-trump-rules-ice-rcna223480.
[23] https://immpolicytracking.org/policies/ice-rescinds-directive-110053-on-using-a-victim-centered-approach-with-noncitizen-crime-victims/.
[24] https://www.yahoo.com/news/articles/cartel-leader-admits-president-trump-013028586.html.
[25] https://www.dhs.gov/news/2025/07/25/dhs-leads-efforts-rescue-child-victims-sex-and-labor-trafficking.
[26] https://www.democrats.senate.gov/newsroom/trump-transcripts/transcript-donald-trump-signs-a-memorandum-to-deploy-troops-in-memphis-tennessee-91525.
[27] https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border.
[28] https://www.k12dive.com/news/school-immigration-policy-Supreme-Court-Plyler/741674/.