Tuesday, July 18, 2017

Immigration Enforcement at the State Level -- SB4

By Angela Lopez

On May 7, 2017, Texas Governor Greg Abbott signed into law Senate Bill 4, otherwise being referred to as “the sanctuary cities law” and it is set to take effect on September 1. 2017  (https://legiscan.com/TX/bill/SB4/2017)   In a Facebook live feed, Gov. Abbot declared, “Texas has now banned sanctuary cities in the Lone Star State.” https://www.facebook.com/TexasGovernor/videos/10155316084703256/?hc_ref=SEARCH  This sweeping legislation (https://legiscan.com/TX/text/SB4/2017) draws a line in the sand and takes a stand against those sheriffs, constables, police chiefs, and other local leaders that do not cooperate with federal authorities.  SB-4 would fine any local official who “adopts, enforces, or endorses” a policy that “prohibits or materially limits the enforcement of immigration laws” and arguably encourages whistle blowing when employees or constituents believe such a policy is being advanced.  So, which jurisdictions have been defying U.S. Immigration and Customs Enforcement (“ICE”) efforts that would prompt the hard line?

Former ICE Director Sarah Saldaña addressed a group of Dallas attorneys in May and explained how the agency had always had full cooperation in Texas.  She struggled to recall if any jurisdiction had willfully declined to cooperate with ICE.

Nevertheless, SB-4 is already facing challenges in court with the charge being led by the city of El Cenizo and Maverick County suing on the basis that the bill violates both the Texas and U.S. Constitutions.  http://www.npr.org/2017/05/12/527949161/tiny-and-defiant-texas-town-launches-headfirst-into-show-me-your-papers-debate

It is no secret and rather, a source of contention, that immigration enforcement is a matter of federal jurisdiction.  We saw this with Arizona’s SB1070 in 2010, often referred to in the media as the “show me your papers” law.  http://immigration.findlaw.com/immigration-laws-and-resources/arizona-immigration-law-s-b-1070.html.


On June 25, 2012, the U.S. Supreme Court struck down various sections of the law as preempted by federal law.  https://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf.  For example, one of the sections made it a misdemeanor criminal offense for the failure of a foreign national to carry documentation of lawful status.  The statute allowed state police to investigate the immigration status of any individual stopped, detained, or arrested if there was reasonable suspicion that the individual was in the country illegally.  The Arizona Attorney General came out after the 5-3 Supreme Court decision and issued an informal opinion providing police officers with instructions to contact U.S. Immigration and Customs Enforcement when they suspect someone is in the country illegally.  That case cost the state of Arizona $1.4 million in attorney’s fees for the plaintiffs.

Now, Texas has taken a similar position and has signaled to the country that enforcement of federal immigration laws is a priority in our great state.  While state legislators and the state’s attorneys defend the legislation as constitutional, opponents argue that the end result will likely be the same as experienced by Arizona’s SB-1070.  Critics are fearful of the broad scope of the law and how it could be applied to punish any critics, even community officials not engaged in law enforcement.  But, will SB-4 withstand the legal scrutiny that doomed parallel provisions of SB-1070?

On June 27, 2017, U.S. District Judge Orlando Garcia heard seven hours of oral arguments as plaintiffs’ lawyers asked him to issue a preliminary injunction.  At closing, Judge Garcia advised that he would review the evidence, but was not sure when a ruling could be expected.  As of the date of this article’s publication, Judge Garcia had not rendered his decision.



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