Appeals court allows part of Senate Bill 4 to go into effect

Chase Karacostas

The 5th Circuit Court of Appeals ruled Monday that sections of Senate Bill 4 can be implemented, overriding a lower court’s ruling that previously blocked the entire law.

The appeals court ruled unanimously that local jurisdictions could not — for now — prohibit cooperation with Immigrations and Customs Enforcement detainer requests. The ruling followed a hearing Friday afternoon where the state asked for a stay of federal district judge Orlando Garcia’s August preliminary injunction against SB4.

“We are pleased today’s 5th Circuit ruling will allow Texas to strengthen public safety by implementing the key components of Senate Bill 4,” Texas Attorney General Ken Paxton, who has been defending SB 4 for several weeks in court, said in a statement Monday. “I am confident Senate Bill 4 will be found constitutional and ultimately upheld.”

SB 4, also known as the “sanctuary cities” law, orders law enforcement agencies to comply with all ICE detainer requests and authorized officers to inquire about an individual’s immigration status during routine duties. State Rep. Mary Gonzalez, D-Clint, is a plaintiff in the lawsuit.

“Today’s ruling by the 5th Circuit Court is a step back for Texas,” Gonzalez said in a statement. “I am hopeful that the court’s final ruling will protect our state’s immigrant communities.”

The court maintained the injunction against portions of SB 4, including punishments for public officials who refuse to cooperate with ICE and a prohibition of “endorsements” against the law. Both Paxton and the judges agreed the word was vague, and the plaintiffs argued it would allow the state to punish public officials for speaking out against the law, a potential First Amendment free speech violation.

Despite the ruling, local law enforcement still has the authority to deny ICE detainer requests on a case by case basis. The requests ask law enforcement to hold suspected undocumented inmates in jail for an extra 48 hours to give ICE time to decide whether to take the individual into custody for deportation.

In its ruling, the court said local agencies must cooperate “according to existing ICE detainer practice and law.” Agencies are allowed to refuse the request if they believe holding someone for the additional 48 hours would place an undue burden or cost on the agency, said Elissa Steglich, clinical professor and attorney with the UT Immigration Clinic.

Senate Bill 4 and the 4th Amendment

A slew of cities — including El Paso, Austin, Dallas and Houston — sued the state in May after its initial passage, saying the law is unconstitutional. But Steglich said there are likely to be multiple hearings spanning several months before federal courts make a decision on the law’s constitutionality.

Steglich said the court also still faces the constitutionality of local law enforcement complying with ICE detainer requests because ICE operates in two realms, criminal and civil law.

For most cases, such as first-time illegal entry into the country, immigrants are breaking civil law, resulting in deportation and a possible monetary fine.

Steglich said with these civil cases, ICE cannot obtain a criminal warrant, the only formal request that allows sheriff’s offices to hold someone in a county jail for longer than their bond or criminal sentence dictates. To resolve this, ICE issues detainer requests, which fall into civil immigration law.

Steglich then said because sheriff’s offices operate in criminal law, if they were to honor the detainer requests, then they could be sued for unlawful seizure, a violation of the 4th Amendment of the U.S. Constitution.

Steglich said by requiring local law enforcement to comply with all detainer requests, the state would be forcing local law enforcement to violate the U.S. Constitution or risk criminal and financial repercussions.

“While there are mechanisms that immigration law allows for cooperation… all of that is — for the most part — limited to information sharing, not actually using state agencies to be part of the enforcement apparatus itself,” Steglich said.

Monday’s decision will last until November, at which point further arguments on the injunction will be heard.