- The Washington Times
Monday, September 25, 2017

A federal appeals court revived Texas’ law against sanctuary cities on Monday, allowing key parts to take effect — including requiring localities to hold on to illegal immigrants for pickup by deportation officers.

While saying Texas’ law, known as SB4, was inartfully drawn, the 5th U.S. Circuit Court of Appeals said that with some quick changes — which the judges ordered — the law can be cleaned up enough for most of it to take effect.


The 3-0 decision appears to mark the first time a high-level federal appeals court has said states can demand that their localities comply with detainer requests, which are the crux of the sanctuary city issue.

“Enforcing immigration law helps prevent dangerous criminals from being released into Texas communities,” said Texas Attorney General Ken Paxton, whose office defended Texas’ law.

The ruling by the judges — two Democratic appointees and one Republican appointee — is just an interim victory, staying parts of an injunction issued by a lower district court. The 5th Circuit will hear full arguments on the merits of SB4 later this year.

Still, it marks a rare time that Democrat-appointed judges have approved stiffer immigration policy during Mr. Trump’s tenure.

It is also an initial victory for the Trump Justice Department, which backed Texas in court.

“Texas is one step closer to ending the dangerous sanctuary policies that prevent federal law enforcement from keeping criminal aliens off the streets and keeping Texans safe,” Attorney General Jeff Sessions said.

Immigrant rights groups called the ruling a disappointment and said Texas’ push to rush the law into effect amounted to mean-spiritedness.

The key part of the ruling prevents localities from blocking their officers and deputies from cooperating with federal immigration authorities who ask for information or help.

More critically for enforcement, localities must comply with “detainer” requests to notify federal officers when a target is being released and to hold them for up to 48 hours beyond the time they would otherwise be set free based on the state or local charges.

The appeals court said the ruling doesn’t mean every detainer has to be honored.

“Rather, the ‘comply with, honor, and fulfill’ provision [of SB4] mandates that local agencies cooperate according to existing ICE detainer practice and law,” the judges said.

They also ruled that law enforcement should release anyone targeted for a detainer who shows proof of lawful immigration status.

Still, the ruling is a major operational victory for U.S. Immigration and Customs Enforcement, the federal deportation agency.

ICE uses detainer requests to harness local police, who often end up seeing illegal immigrants or other deportable aliens come through their prisons and jails. Detainer requests ask local officials to notify ICE when someone is about to be released and, if possible, to hold on to them for up to 48 hours longer, giving federal officers the chance to pick them up.

ICE says it is much safer to transfer someone from one custody to another. But a number of jurisdictions balk, saying they don’t want to be part of immigration enforcement.

The issue exploded to the forefront in 2015 when Kate Steinle was killed while walking the San Francisco waterfront with her father. The illegal immigrant charged with the slaying had been repeatedly deported but had sneaked back into the U.S. and was living in San Francisco under protection of its sanctuary policy, federal officials said.

Then-candidate Donald Trump used the Steinle killing as an example of a problem gone out of control and vowed a crackdown once he was in the White House.

That spurred a backlash from states and localities, which enacted or enhanced sanctuary policies.

Texas went the other direction, fulfilling a yearslong push by state Republicans to crack down on sanctuary cities such as Austin.

The law had been slated to take effect Sept. 1, but a Democrat-appointed federal judge issued a broad injunction blocking most of the key parts.

Monday’s appeals court ruling leaves some of that injunction in place, including halting the part of the law that would have imposed penalties on police chiefs or local government officials who tried to thwart SB4.

Some immigrant rights groups Monday said that, combined with some rewrites to the reach of the detainer and cooperation sections, took the sting out of the appeals court’s ruling.

“This is still largely a victory for immigrant communities and local law enforcement,” said Andre Segura, legal director at the Texas American Civil Liberties Union.

Monday’s ruling comes as judges are increasingly being asked to set the boundaries of immigration enforcement, and the cooperation localities must show.

Federal judges in California and Illinois have blocked the Justice Department’s attempts to punish sanctuary city policies by attaching conditions to federal grants.

Under existing federal law, localities must agree to share information, but there is no requirement for them to abide by detainer requests.

In a telling moment during oral argument in the SB4 case last week, Texas Solicitor General Scott Keller said sanctuary states and Texas are on the same plane: If Texas can require cooperation, then other states can refuse cooperation.

“The federal government cannot tell the state what to do, and the federal government cannot tell the state that it must — or cannot — order its local officials to do otherwise,” Mr. Keller said. “States are permitted under their own powers to say we’re not going to cooperate.”

That could boost sanctuary states such as California.


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