Nolan writes:
“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.
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.
. . . .
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.”
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Read Nolan’s complete analysis over at The Hill at the link.
I agree with Nolan that the Chief District Judge Orlando L. Garcia’s analysis of SB 4’s constitutional infirmities appears to be correct. I also agree that rationale should eventually require DHS to change its detainer policy nationwide to meet constitutional standards.
That means that a battery of DHS and DOJ attorneys, of which there is no shortage, will have to work with the enforcement branches to come up with effective enforcement methods that comply with our Constitution. Stuff like that happens all the time. That’s why the Government needs good lawyers.
I don’t agree with Nolan that the only way for DHS to function is for Congress to pass legislation turning untrained local cops into immigration officers for the purpose of honoring detainers. Seems like you end up with the same problem, just “dressed up” differently.
I spent over a decade working for the Legacy INS on immigration enforcement matters. Nobody ever doubted that immigration officers could effectively carry out their duties 1) in full compliance with the U.S. Constitution, and 2) without relying on state and local officials. Indeed, the “mantra” of INS Enforcement in those days was “we’re the immigration pros, leave enforcement to us.” I guess times must have changed; but not that much. And, the Fourth Amendment hasn’t changed at all.
I also don’t buy the claim that Abbott was interested in protecting Texans from dangerous crime. No, this was about a White Nationalist agenda designed to put down minorities, particularly in the Latino community, and prevent them from getting their fair share of political power. That’s why, although Latinos make up a large proportion of Texas’s population, Latino leaders generally opposed the GOP’s and Abbott’s racially divisive action.
A bill really aimed at protecting all Texans, regardless of ethnicity or status, from violent crime would have received support from about 98% of residents (who really wants to be a victim of violent crime — almost nobody, as the BIA has observed on a number of occasions) including the overwhelming number of Latinos. That it didn’t, and that a majority-Latino jurisdiction like El Cenizo is the lead plaintiff opposing the bill says all you need to know about the SB 4’s White Nationalist intent.
There will come a day when the Abbotts, Paxtons, and other denizens of the Texas White GOP will have to share power equitably with Latino and other minority Texans. When that happens, they can only hope that Latino leaders and politicians will have short memories, forgive the racism of the past, and move on to the future treating them with greater respect and consideration than they deserve based on their recent “sharp stick in the eyes” words and actions.
Until that happens — well, as I’ve said before, lots of work for lawyers and judges.
PWS
09-04-17
Paul says, “I agree with Nolan that the Chief District Judge Orlando L. Garcia’s analysis of SB 4’s constitutional infirmities appears to be correct. I also agree that rationale should eventually require DHS to change its detainer policy nationwide to meet constitutional standards.”
DHS can’t make its detainer policy meet constitutional standards. As I explain in my article, Judge Garcia finds that State and Local Law Enforcement Agencies can’t detain a person unless they have probable cause to believe that the person has committed a crime, and the ICE detainer just says there is probable cause to believe that the person is a deportable alien.
No policy change will get around that problem.
The solution is for congress to give state and local police authority to detain a person on the basis of an ICE detainer. This would not require them to comply but it would make it possible for them to do it.
Paul says, “I don’t agree with Nolan that the only way for DHS to function is for Congress to pass legislation turning untrained local cops into immigration officers for the purpose of honoring detainers. Seems like you end up with the same problem, just “dressed up” differently.”
Giving local cops authority to detain someone on the basis of an ICE detainer does not make the immigration officers in any real sense. But they would need some training. They would have to be able to determine whether a detainer is valid.
Paul says, “I spent over a decade working for the Legacy INS on immigration enforcement matters. Nobody ever doubted that immigration officers could effectively carry out their duties 1) in full compliance with the U.S. Constitution, and 2) without relying on state and local officials. Indeed, the “mantra” of INS Enforcement in those days was “we’re the immigration pros, leave enforcement to us.” I guess times must have changed; but not that much. And, the Fourth Amendment hasn’t changed at all.”
I don’t know what Paul is talking about. The subject of my article is ICE detainers. If Garcia is right, and Paul and I both think that is the case, local police will not be able to hold aliens beyond their release dates to give ICE a chance to pick them up. ACLU and other advocacy groups will make sure that the rest of the federal court jurisdictions will stop police from complying with detainers too.
Paul says, “I also don’t buy the claim that Abbott was interested in protecting Texans from dangerous crime. No, this was about a White Nationalist agenda designed to put down minorities, particularly in the Latino community, and prevent them from getting their fair share of political power. That’s why, although Latinos make up a large proportion of Texas’s population, Latino leaders generally opposed the GOP’s and Abbott’s racially divisive action.”
This is an ad hominem attack on Abbot, not a rebuttal of anything I say in my article.
Paul says, “A bill really aimed at protecting all Texans, regardless of ethnicity or status, from violent crime would have received support from about 98% of residents (who really wants to be a victim of violent crime — almost nobody, as the BIA has observed on a number of occasions) including the overwhelming number of Latinos. That it didn’t, and that a majority-Latino jurisdiction like El Cenizo is the lead plaintiff opposing the bill says all you need to know about the SB 4’s White Nationalist intent.”
Paul says, “I agree with Nolan that the Chief District Judge Orlando L. Garcia’s analysis of SB 4’s constitutional infirmities appears to be correct. I also agree that rationale should eventually require DHS to change its detainer policy nationwide to meet constitutional standards.”
DHS can’t make its detainer policy meet constitutional standards. As I explain in my article, Judge Garcia finds that State and Local Law Enforcement Agencies can’t detain a person unless they have probable cause to believe that the person has committed a crime, and the ICE detainer just says there is probable cause to believe that the person is a deportable alien.
No policy change will get around that problem.
The solution is for congress to give state and local police authority to detain a person on the basis of an ICE detainer. This would not require them to comply but it would make it possible for them to do it.
Paul says, “I don’t agree with Nolan that the only way for DHS to function is for Congress to pass legislation turning untrained local cops into immigration officers for the purpose of honoring detainers. Seems like you end up with the same problem, just “dressed up” differently.”
Giving local cops authority to detain someone on the basis of an ICE detainer does not make the immigration officers in any real sense. But they would need some training. They would have to be able to determine whether a detainer is valid.
Paul says, “I spent over a decade working for the Legacy INS on immigration enforcement matters. Nobody ever doubted that immigration officers could effectively carry out their duties 1) in full compliance with the U.S. Constitution, and 2) without relying on state and local officials. Indeed, the “mantra” of INS Enforcement in those days was “we’re the immigration pros, leave enforcement to us.” I guess times must have changed; but not that much. And, the Fourth Amendment hasn’t changed at all.”
I don’t know what Paul is talking about. The subject of my article is ICE detainers. If Garcia is right, and Paul and I both think that is the case, local police will not be able to hold aliens beyond their release dates to give ICE a chance to pick them up. ACLU and other advocacy groups will make sure that the rest of the federal court jurisdictions will stop police from complying with detainers too.
Paul says, “I also don’t buy the claim that Abbott was interested in protecting Texans from dangerous crime. No, this was about a White Nationalist agenda designed to put down minorities, particularly in the Latino community, and prevent them from getting their fair share of political power. That’s why, although Latinos make up a large proportion of Texas’s population, Latino leaders generally opposed the GOP’s and Abbott’s racially divisive action.”
This is an ad hominem attack on Abbot, not a rebuttal of anything I say in my article.