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"Police" State Comes Closer as Texas Enacts Law Sending Officers to Jail if They Refuse to Honor Federal Immigration Detainers. Roger Algase

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The following has been revised and corrected as of May 8, based on my reading of the actual Texas Law, as opposed to press reports about the law which contained some inaccuracies.

Specifically, the law as signed does not make it a crime for state or local police officers to fail or refuse to ask about the citizenship or immigration status of anyone detained or arrested, but "only" makes it a crime (punishable by up to a year in jail!) to refuse to honor a federal immigration detainer.

Even this section of the new Twxas law, SB 4, however, is patently unconstitutional on its face, because there is no federal law making it a crime to refuse to honor detainers. To the contrary, it is entirely voluntary for local officials to honor them or not. Obviously, the federal government has preempted the field of issuing federal detainers for immigrants charged with crimes.

To argue to the contrary would be absurd.

However, while there is no criminal penalty in the new law for refusing to ask for the immigration status of persons detained for arrested, police officers who refuse to engage in this form of racial profiling against Latino immigrants and US citizens and lose their jobs, and local governments or colleges which prohibit their own law enforcement personnel from doing so are subject to huge fines.

The final version of the law also exempts places of worship from its anti-"Sanctuary" provision and prohibits police officers from asking about the citizenship or immigration status of crime victims or witnesses, as opposed to suspects.

This would appear to assuage a major concern of Democratic members of the Texas legislature that the law would discourage the reporting of crimes in Hispanic or other immigrant communities.

To be sure, as Nolan Rappaport points out in his comments below, even though the Texas law is clearly intended to, and certainly will cause even greater fear and anxiety in Hispanic and immigrant communities throughout that state, it does not mean that America has as yet become another Nazi Germany.

It is only one more enactment that is moving us in that direction in the "New Era" (no, I am not saying "New Order", as the Nazis did), of Donald Trump.

My revised original comment follows:

In one of the most dramatic and chilling examples yet of how the movement to cut off and reverse Hispanic and other immigration from non-European parts of the world, which has been building for the past 20 years or more, (ever since a Republican-controlled Congress rammed through IIRIRA in 1996 without discussion or debate as part of a larger appropriations bill which President Clinton could not possibly have vetoed without risk of losing his bid for reelection a few weeks later, and which ultimately led to the election of Donald Trump despite losing the popular vote to another Clinton in 2016), is endangering the basic rights and freedoms of American citizens as well as immigrants, Texas governor Greg Abbott has now signed a measure that would send police officers to jail if they refuse to honor federal immigration detainers.

The measure, S.B. 4, which is highly questionable on constitutional grounds because of its resemblance to Arizona's notorious 2010 S.B. 1070 law, key parts of which were struck down by the Supreme Court, would also impose heavy fines on local jurisdictions and universities which adopt "Sanctuary" policies prohibiting local law enforcement from inquiring into a person's citizenship or immigration status.

Local law enforcement officers who follow such policies, or who refuse to share the above citizenship or immigration status information with the federal government could also lose their jobs, under the new law.

Despite the almost laughable statement of the bill's sponsor, State Senator Charles Perry, that the measure would provide "uniform application of the law without prejudice", everyone in Texas, and America, knows that the new measure is directed against Hispanics and will inevitably lead to racial profiling of both immigrants and US citizens who "look" Mexican.

Since the federal government does not (yet), have a statute imposing fines or penalties on federal law enforcement officers who refuse to ask about a person's immigration status or punishing "Sanctuary" jurisdictions, (other than Trump's executive order cutting off their federal funds which has now been blocked by a federal court) the Texas law is almost certain to be struck down by the federal courts on preemption grounds, just as Arizona's law was, unless the Supreme Court reverses itself and overrules its decision in the Arizona case.

Until the Texas law is struck down (if and when), it will remain as a chilling warning that the current movement, which has evident support at the highest levels of the Trump administration, to reverse the policies of permitting immigration from all over the world that has been in effect since 1965 and to take America back to the Europeans-only immigration laws of the 1920's, presents a clear and present danger to the basic rights and freedoms of Americans who support immigration (or who may "look like" immigrants) not only to the rights of immigrants themselves.

The Texas measure, even though it does contain protections for churches and other places of worship, and for crime victims and witnesses, as mentioned above, is still the latest step toward an American "police" state in more ways than one in the "Era" of Donald Trump.
__________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards, without regard to ethnicity, religion or country of origin. Roger's email address is algaselex@gmail.com

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Updated 05-08-2017 at 10:03 AM by ImmigrationLawBlogs

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Comments

  1. ImmigrationLawBlogs's Avatar
    Roger says, "The measure, which is highly questionable on constitutional grounds because of its resemblance to Arizona's notorious 2010 S.B. 1070 law, key parts of which were struck down by the Supreme Court, would also make it a crime for local jurisdictions to adopt "Sanctuary" policies prohibiting local law enforcement from inquiring into a person's immigration status."

    I agree that the law can be struck down by the courts, but not on the basis of Roger's views. The federal government has already occupied that law enforcement area.

    Section 1373 of the Immigration and Nationality Act (INA) provides that state and local government jurisdictions may not prohibit, or in any way restrict, any government entity or official from sharing immigration information with U.S. Immigration and Customs Enforcement (ICE).

    And 8 U.S.C. 1324(a)(1)(A)(iii) provides criminal penalties for concealing, harboring, or shielding aliens from detection who are in the United States illegally.

    I think that violating Section 1373 can be considered "harboring," as can other things that government officials in sanctuary cities are doing.

    No, I am not saying the government should prosecute any government official on this basis. My point is just that I think the government can do it, and if mayors and other local government officials keep poking Trump in the eye with a stick, I will be surprised if they aren't prosecuted.

    For a more complete explanation of my views, see my article, "Sanctuary cities 'harboring' aliens: Trump's next immigration target?"
    http://thehill.com/blogs/pundits-blo...ary-cities-and

    Nolan Rappaport
  2. ImmigrationLawBlogs's Avatar
    As I read Section 1373, all it does is require state or local government officials to maintain and share any information they may have about a given person's immigration status with the federal government.

    Nothing in that very narrow statute requires state or local police officers or anyone else to obtain that information in the first place, whether by stopping anyone who "looks" Hispanic at a traffic light or street corner and demanding to see the person's papers, as in the failed Arizona statute, or by any other means.

    Moreover, violation of this narrowly drafted federal law is not a crime. Nothing in the language of Section 1373 could possibly lead to a conclusion that the federal government has made it crime for a local police officer to fail or refuse to ask for someone's immigration status information in the first place.

    With regard to the federal criminal statute, INA Section 274, this is indeed a very broad criminal statute which could have dangerous implications for the basic liberties of all Americans, not only police officers, because of its use of the broad (and, I would argue, unconstitutionally vague terms: "harbor" and "assist" in the context of the statute).

    But even this very broad statute only applies to someone who acts with knowledge of or reckless disregard of a person's lack of lawful immigration status.

    Nothing in that law requires law enforcement officers to stop every Hispanic or Asian person they may run across in the street or on the road and ask for their papers.

    Up to now, INA Section 274 has been used primarily (though not exclusively) to prosecute smuggling related offences.

    The day that it becomes expanded very far beyond that limited context will be the day that America will need to take down its flag and put up one with a swastika instead.

    Neither of the above statutes provides the slightest basis for arguing that Texas is only acting in accordance with existing federal law by sending its own state or local police officers to jail for refusing to demand immigration documents from almost every person they may run across.

    Roger Algase
    Attorney at Law
    Updated 05-04-2017 at 09:42 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    I agree with Roger that Section 1373 does not require state or local governments to do anything at all. It just says that they can't PROHIBIT the police or other government agencies from sharing immigration information they happen to have with the immigration service.

    Roger, have you read the Texas bill? It's SB4 if you want to look it up.

    According to a summary I found on the Texas legislature's website:

    Under the provisions of the bill, a local entity or campus police department may not adopt or enforce an ordinance, order, rule, policy or other measure under which the entity or department prohibits the enforcement of immigration laws, or prohibits enforcement of immigration laws as demonstrated by pattern or practice.

    The bill would also establish a criminal offense for the failure by certain officials to comply with an immigration detainer request, which would be a Class A misdemeanor.

    Harboring is another matter. That is a federal crime.

    The INA does not specify what actions constitute “harboring.” This has been left to the courts, and the courts have not settled on one uniform definition. But the most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, and this seems to be the primary reason for sanctuary cities and municipal ID card programs.

    Roger, do you really think that imposing criminal sanctions for affirmatively assisting aliens to remain here illegally is similar to what happened in Nazi Germany?

    Nolan Rappaport
    Updated 05-05-2017 at 12:26 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    With regard to Nolan's last question, if the use of INA Section 274 is expanded far enough in the direction that Jeff Sessions indicated that it might be in a recent speech in Arizona, almost any type of contact between American citizens and real or suspected unauthorized immigrants could be deemed "harboring" or "assisting" and could lead to criminal prosecution.

    Then we would we well on the road to having Nuremberg-style laws, of the kind that were enacted in 1936 to prohibit contacts between Germans and Jews, here in America.

    Roger Algase
    Attorney at Law
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    With regard to Nolan's last question, if the use of INA Section 274 is expanded far enough in the direction that Jeff Sessions indicated that it might be in a recent speech in Arizona, almost any type of contact between American citizens and real or suspected unauthorized immigrants could be deemed "harboring" or "assisting" and could lead to criminal prosecution.

    Then we would we well on the road to having Nuremberg-style laws, of the kind that were enacted in 1936 to prohibit contacts between Germans and Jews, here in America.

    Roger Algase
    Attorney at Law

    Roger, you are the most pessimistic person I know. You remind me of George on Seinfeld. One morning he realizes how well he is doing and sinks into a fearful depression because he is convinced that it can't last and something terrible is going to happen to him.

    Your concern that the authorities will go to extremes in enforcing the harboring laws is no more rational than worrying that the police are going to give tickets to drivers going one mile over the speed limit, arrest people for jaywalking when they are a few feet out of the pedestrian crossing lane, shoot people who make sudden moves when they have angry scowls on their faces, and so on.

    You can't have a society without laws, and all laws can be abused.

    The thing that distinguishes you from George is that he didn't worry that law enforcement would turn the country into another Nazi Germany.

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    I have made some revisions and corrections in my original comment above, based on reading the text of the new Texas law, S. B. 4, which has now been signed by the governor. My original comment was based on press reports only, not always the most accurate kind of information about any kind of legal enactments or decisions.

    Roger Algase
    Attorney at Law
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