Texas bans sanctuary cities but Trump may be a step ahead

On Sunday, Texas Governor Greg Abbott signed into law a bill banning sanctuary cities in Texas, Senate Bill No. 4 (SB 4). According to Abbott, sanctuary city policies have deadly consequences and will not be tolerated in Texas.  

He referred to Kate Steinle, who was allegedly shot dead by an undocumented alien while she was walking on a busy pier in San Francisco with her father.  The alien was a repeat felon who had been deported five times.  The San Francisco police department had released him from custody without notice to ICE despite the fact that ICE had given the department an immigration detainer requesting such notice. San Francisco is a sanctuary city.

Abbott supports legal immigration, but not harboring aliens who have committed dangerous crimes.

{mosads}Texas officials who foster sanctuary policies which might be considered harboring would be wise to reconsider that practice even if SB 4 is never implemented.  Harboring is a federal criminal offense, which, when it results in a death, is punishable “by death or imprisoned for any term of years or for life.”

What does the Texas law provide?

Among other things, it sanctions local government entities and campus police who prohibit their officers from:

1. Inquiring into the immigration status of a person under a lawful detention or under arrest;

2. Exchanging information with ICE on the immigration status of any person under a lawful detention or under arrest; or

3. Assisting a federal immigration officer when it is reasonable or necessary to do so.

“Lawful detention” is defined as holding an individual for the investigation of a criminal offense.  It does not include individuals who are detained for questioning because they are victims or witnesses.  

NEW: Five things to know about Texas’ controversial sanctuary city law https://t.co/vZMCjqPzs0 pic.twitter.com/zayUQmW0gP

— The Hill (@thehill) May 8, 2017

SB 4 creates civil penalties ranging from $1,000 to $1,500 for a first offense, and from $25,000 to $25,500 for each subsequent violation.  Each day of a continuing violation constitutes a separate violation.

SB 4 requires law enforcement agencies to honor immigration detainer requests.  Refusing to comply is a Class A misdemeanor.  

According to DHS, detainers serve as “a legally-authorized request, upon which a law enforcement agency may rely, to continue to maintain custody of the alien for up to 48 hours so that ICE may assume custody for removal purposes.”

SB 4 establishes a grant program to offset the costs of complying with its provisions, including community outreach to inform people that crime victims and witnesses can talk to the police without fear of immigration consequences.

Will the Texas law ever be implemented?

SB 4 will be effective on Sept. 1, 2017, but the litigation has started already.  The day after it was signed into law, the Texas attorney general filed a Complaint for Declaratory Judgment asking a U.S. District Court to uphold its constitutionality.

Top Texas sheriff comes out against state law banning sanctuary cities: https://t.co/DO5LqAvfij pic.twitter.com/vbd5FCoJ9h

— The Hill (@thehill) May 9, 2017

Under the federal Declaratory Judgment Act, Texas may resolve challenges to the constitutionality of SB 4 in a single suit. 

And MALDEF has pledged to do its level best, in court and out, to help Texas to overcome SB 4, which it calls, “Abbott’s Folly.”

Does it matter?

State action was needed to deal with noncriminal illegal immigration in the interior of the country when Barack Obama was the president.  He focused his immigration enforcement efforts on aliens who had been convicted of serious crimes or who had been caught near the border after making an illegal entry.

In addition to leaving interior immigration problems up to the States, this created what I call a “home free magnet.”  Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country, unless they were convicted of a serious crime.  

President Donald Trump destroyed this magnet with his Executive Order, Enhancing Public Safety in the Interior of the United States, which greatly expanded enforcement priorities and the scope of expedited removal proceedings.  

The expanded expedited removal proceedings will make it possible to deport millions of undocumented aliens without a hearing before an immigration judge.  And no deportable alien is safe under his enforcement policies.

President Trump has attempted to put an end to sanctuary cities by withholding federal funding, but that program has been tied up in litigation.  I expect that meat-cleaver approach to fail.

His next step might be to prosecute officials under the harboring provisions of the Immigration and Nationality Act who go too far with sanctuary policies.  These provisions make it a capital offense to conceal, harbor, or shield undocumented aliens from detection if the violation results in the death of any person.

It does not specify what actions constitute “harboring,” and the courts have not settled on one uniform definition.  But the most frequent characteristic the courts have used is that “harboring” makes it easier for aliens to live in the United States without lawful status, which is one of the main objectives of sanctuary cities.

Ironically, although a sanctuary city is supposed to make undocumented aliens safer, it makes them more vulnerable because so many of them live in the sanctuary cities.  When the Trump administration launches its expedited removal proceedings round-up, it almost certainly will start with the sanctuary cities.

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. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

The views expressed by contributors are their own and are not the views of The Hill.