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Federal court's pro-sanctuary cities decision can cripple enforcement. By Nolan Rappaport

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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.

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.


Published originally on The Hill.

About the author.
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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Updated 09-04-2017 at 02:44 PM by ImmigrationLawBlogs

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  1. ImmigrationLawBlogs's Avatar
    Nolan argues that Texas' SB 4 was intended to protect the public by preventing the release of "dangerous alien criminals" after they have been dealt with by the state's criminal justice system.

    What is Nolan's basis for assuming that Texas or any other state is incapable of determining, through its own criminal law procedures, whether any given individual, "alien" or otherwise, who may be suspected of committing a crime is guilty, and, if so, how long a time the person should be incarcerated for?

    As a matter of logic, Nolan's argument that forcing the states to hold someone whom its criminal justice system has finished with, either though failure to file or dismissal of charges, determination of innocence after a trial, or the person's having finished serving the sentence if convicted, merely because the person may be subject to arrest and detention on unrelated federal civil grounds, i.e. being present in the US in violation of the immigration laws, with further criminal law enforcement is self-contradictory and makes no sense whatsoever.

    As Nolan points out in his own discussion of the federal court's SB 4 injunction, state criminal matters and federal immigration matters are entirely separate, and our constitutional system gives the states, not the federal government, the power to decide how long someone convicted of a state crime should remain behind bars.

    Federal immigration detainers have nothing to so with any criminal process; they are entirely civil matters. Arguing that honoring civil federal detainers is necessary to protect the public against crime is entirely fallacious.

    Using inflammatory examples such as Kate's having being killed by a non-US citizen (so reminiscent of the furor over Mass. Governor Michael Dukakis having released Willie Horton from jail before the 1988 presidential campaign) for political purposes by stirring up resentment over racial minorities, whether US citizens, as in the Willie Horton case, or immigrants, as in Kate's case, may make good propaganda, but it does nothing to bolster Nolan's legal argument.

    To put it more simply, how long a state should incarcerate someone suspected ot convicted of crime is like oranges.

    A civil proceeding to remove someone who is in this country without legal permission from the US is like apples.

    Essentially, the Federal District Court in the SB 4 case held that oranges and apples should not be mixed up.

    By arguing that federal civil detainers are necessary, not just to enforce the immigration laws, but to protect the public against dangerous criminals, Nolan is mixing oranges with apples, rather than making any valid legal point.

    And to return to SB 4, if Nolan feels that the Texas criminal justice system is soft on crime and may be releasing "dangerous criminals" into society too soon, he should be encouraging the Texas legislature to enact stricter state criminal laws, rather than relying on the federal government to enforce an unrelated set of civil statutes known as the immigration laws.

    Roger Algase
    Attorney at Law
    Updated 09-04-2017 at 10:50 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Nolan's contention that forcing the states to honor unrelated civil federal immigration detainers on people suspected or convicted of violating state criminal laws is necessary to protect the public against "dangerous criminals" ("aliens" or otherwise - Nolan is using that as a purely pejorative term here, as if being an "alien" made a "dangerous criminal" even more dangerous) not only fails as a matter of legal logic, but as a matter of reality.

    During its short lived publication of crimes that various immigrants had allegedly been charged with or convicted of under the president's VOICE program, it became clear that the overwhelming majority of these alleged offenses were relatively minor ones such as DUI, trespassing, or the like, with some attempted assaults, etc. also thrown in.

    If the short-lived VOICE program shed any light at all on the use of federal detainers, it was to show that they were essentially just one more tool to try to catch and deport immigrants who were in the US without authorization in support of the president's mass deportation agenda against both "criminal" and non-criminal immigrants, not as protection against "dangerous criminals" as Nolan claims above.

    I will not even get into a discussion of studies showing that all immigrants, both legal and otherwise, commit crimes at a lower rate than native born US citizens.

    Roger Algase
    Attorney at Law
    Updated 09-04-2017 at 12:38 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Also, while Nolan may or may not be interested in discussing the human and societal implications of an immigration enforcement policy ueber alles, i.e. enforcement purely for its own sake, without regard to its effect on the lives and families of the people affected, or of America's values of openness and tolerance as a nation, it is also necessary to point out that the argument over whether state officials should honor federal immigration detainers is part of a larger picture concerning whether the president's emphasis on enforcement against every single unauthorized immigrant in the US today is wise, fair or humane, rather than meant as a sop to the most intolerant, bigoted elements in his own voter base (or, as some have argued, in the president's own psyche).

    The president's reported decision to end DACA, which has nothing to do with "criminal aliens", but everything to do with deserving young students who came here through no fault of their own, but are preparing themselves to contribute to society through their skills and education, is a case in point.

    As a staunch Republican
    columnist, Jennifer Rubin, writes in the September 5 Washington Post:

    "However this [ending DACA] turns out, the GOP under Trump has defined itself as the white grievance party - bluntly, a party fueled by concocted white resentment aimed at minorities. Of all the actions Trump has taken, none has been as cruel, thoughtless or divisive as deporting hundreds of thousands of young people who've done nothing but go to school, work hard and present themselves to the government."

    Certainly, people who are being charged with crime or have finished serving their sentences may be less sympathetic or deserving than the nearly 800,000 Dreamers (and their families) whose lives would be devastated by terminating DACA, but Trump has himself emphasized that his enforcement policies are not aimed at prioritizing criminals, but at deporting as many immigrants as he possibly can.

    In this sense, his detainer policy and ending DACA are directly related: they are part and parcel of the same policy of the ethnic cleansing of America through mass deportation of mainly Latino and other non-white immigrants that the president appears to be adopting as his core immigration agenda - and legacy.

    Roger Algase
    Attorney at Law
    Updated 09-04-2017 at 12:16 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    As a further thought, since Nolan does not seem to be willing or able to respond to my previous points raised above concerning the inconsistencies and internal contradictions in his own legal arguments regarding SB 4, if the Trump administration is really interested in protecting the public against dangerous criminals, rather than using state criminal justice systems to widen the mass deportation dragnet by placing detainers on immigrants charged with minor crimes, many of whom may in fact be innocent and never convicted, the logical approach would be to prioritize serious criminals for deportation, as President Obama claimed to be doing.

    Instead, Trump is using enforcement resources which everyone concedes are not unlimited to go after every unauthorized immigrant in America, even those who have no criminal records at all. This, obviously, means fewer resources are available to go after the really dangerous people.

    That may be helpful in reducing the non-white population of America, which, very arguably, is the real goal of the Trump administration and its enthusiastic white nationalist base supporters, but can Nolan explain how this dilution of immigration enforcement resources protects the public against the really dangerous criminals among America's immigrant population?

    Roger Algase
    Attorney at Law
    Updated 09-05-2017 at 06:16 AM by ImmigrationLawBlogs
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