Federal court's pro-sanctuary cities decision can cripple enforcement
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At the end of August, a federal district court in Texas ruled against that state, halting an immigration enforcement law shortly before it was to go into effect.

The court issued a preliminary (temporary) injunction to halt the implementation of five allegedly unconstitutional provisions in Texas’ anti-sanctuary city law, Senate Bill 4 (SB 4), including one that would require law enforcement agencies in Texas to “comply with, honor, and fulfill” any immigration detainer issued by U.S. Immigration and Customs Enforcement (ICE).

This means that the court found a substantial likelihood that the plaintiffs (in this case, the parties opposing the state of Texas) will succeed in establishing that those provisions are unconstitutional when a decision is rendered on the merits of the case.

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If the decision on ICE detainers is correct, which seems to be the case, it could cripple ICE’s ability to prevent removable criminal aliens from absconding when they are released from custody by state and local law enforcement agencies.

Detainers ask the state or local law enforcement agency that is detaining a removable alien to (1) notify DHS as early as practicable before the suspected removable immigrant is scheduled to be released from criminal custody; and (2) maintain custody of the subject for up to 48 hours beyond the time he would otherwise have been released so that DHS can assume custody of him.

The decision’s rationale.

ICE has authority to detain someone on probable cause to believe that the person is a deportable alien, but state and local police only have authority to detain someone on the basis of probable cause to believe that the person has committed a crime.

If the police want to hold an alien beyond his release date, they have to make a new probable cause determination or the new detention period will violate the alien’s constitutional rights under the Fourth Amendment.

The justification for the original detention no longer applies, and they cannot start a new detention period on the basis of the detainer. It only relates to probable cause that the alien is deportable.

The detainer, DHS Form I-247A, states that a determination has been made that probable cause exists to believe that someone in the custody of a state or local law enforcement agency is a removable alien on the basis of one of the following grounds:

  1. A final order of removal;
  2. The pendency of ongoing removal proceedings against the alien;
  3. Biometric confirmation of the alien’s identity and a records match in the federal database which affirmatively indicates that the alien lacks lawful status or, notwithstanding such status, is removable under U.S. immigration law; or
  4. Statements made voluntarily by the alien to an ICE immigration officer or some other reliable evidence that the alien either lacks lawful status or, notwithstanding such status, is removable under U.S. immigration law.

Also, probable cause determinations have to be based on the facts specific to the subject facing detention, which is not possible under SB 4’s detainer provision. It makes compliance with detainers mandatory, regardless of the circumstances.

Consequences.

If court’s preliminary finding on the detainer provision is finalized when a decision is rendered on the merits of the case, it will prevent SB 4 from protecting Texans from the release of dangerous alien criminals, which was the primary reason for enacting SB 4.

When Texas Governor Greg Abbott signed SB 4 into law, he said that denying detainer requests can have deadly consequences.  This is illustrated by the case of Kate Steinle, who was shot dead by a criminal alien while she was walking with her father on a busy pier in San Francisco.  

The alien was a repeat felon who had been deported five times, but the police department that had been holding him released him in disregard of a detainer request because San Francisco is a sanctuary city that does not honor detainer requests.

Preventing the use of detainers could have unintended consequences. If other federal courts agree with the decision’s disposition of the detainer issue; state and local police in every part of the country may have to stop honoring detainer requests, and ICE could use the time that would have been spent following up on detainers to go after noncriminal aliens.

ICE can encourage state and local police departments to participate in the federal 287(g) Program, which allows participants to enter into a partnership with ICE on the basis of a Memorandum of Agreement (MOA). They would receive training on immigration enforcement and delegated immigration authority, which includes the option of being able to detain aliens on the basis of detainers.

But ICE does not have the resources to train and supervise police in all of the state and local law enforcement agencies in the country.  

The only solution is for Congress to grant state and local police the authority to detain aliens on the basis of an ICE detainer.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.


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