By: Creighton Boggs, L’19
On September 5th, Attorney General Jeff Sessions announced that the Trump administration would end the Deferred Action for Childhood Arrivals (DACA) program.[1] The deferred deportation program granted temporary relief to approximately 800,000 undocumented immigrants who entered the United States as children.[2] Conservatives have long criticized the program, established by President Obama through executive action in June 2012, as an unconstitutional abuse of executive power.[3] The current administration’s decision to phase out the program came in response to pressure from ten states, whose attorney generals threatened to amend a pending lawsuit challenging the constitutionality of a variety of immigration programs, including DACA, if the administration did not rescind the 2012 Department of Homeland Security (DHS) memorandum establishing the program by September 5th.[4]
Attorney General Sessions’ announcement on September 5th reignited the debate over the federal government’s role in enforcing national immigration policy, including executive authority to prioritize enforcement. However, this discussion has largely overshadowed the ongoing debate over state governments’ role in enforcing federal immigration policy, including their authority to compel local governments’ cooperation. These are the issues raised by City of El Cenizo, Texas, et al v. State of Texas, a challenge to Texas’ Senate Bill 4 (S.B. 4).[5]
S.B. 4, which was intended to take effect on September 1st, contains multiple provisions targeting sanctuary cities and schools that have enacted policies shielding undocumented immigrants from potential deportation.[6] Most notably, S.B. 4 mandates compliance with immigration detainer requests made by United States Immigration and Customs Enforcement (ICE).[7] The City of El Cenizo and the League of United Latin American Citizens brought suit in federal district court, arguing that several provisions violated local officials’ rights under the 4th and 10th Amendments.[8] On August 30th, U.S. District Judge Orlando L. Garcia granted a preliminary injunction on several of the bill’s provisions, including the mandatory detainer provision.[9] The case is currently on appeal before the 5th Circuit Court of Appeals, whom the U.S. Department of Justice (DOJ) has asked to enforce the bill’s mandatory detainer provision.[10]
The plaintiffs in City of El Cenizo are not challenging the authority of state and local officials to enforce federal immigration law. As the Supreme Court noted in Arizona v. United States (2012), “federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer.”[11] §287(g) of the Immigration and Nationality Act allows ICE to enter into voluntary agreements with state and local law enforcement agencies that allow “designated officers to perform immigration law enforcement functions, provided that… [they] receive appropriate training and function under the supervision of ICE officers.”[12]
Instead, the plaintiffs are challenging the state’s authority to compel local law enforcement to detain individuals for forty-eight hours at the request of ICE, unless the person has provided proof that they are “a citizen of the United States or that [they have] lawful immigration status in the United States.”[13] Judge Garcia held that the mandatory detainer provision likely violated the 4th Amendment, because it “prohibit[ed] local officials from undertaking any particularized assessment of suspected criminality… [and] mandate[d] they effect a seizure simply because it was requested by ICE.”[14] This statement echoed a previous decision in which Judge Garcia found that Bexar County Jail’s policy of holding individuals in jail under immigration detainers after criminal charges are dismissed violated the 4th Amendment.[15]
If the 5th Circuit Court of Appeals agrees with this assessment of S.B. 4’s mandatory detainer provision, it could present a serious challenge to other states’ attempts to force compliance with federal immigration policy.
[1] Allissa Wickham, Trump Admin. Announces End To DACA Program, Law360 (Sept. 5, 2017, 11:16 AM), https://www.law360.com/articles/960391/trump-admin-announces-end-to-daca-program.
[2] Richard Gonzales, 5 Questions About DACA Answered, NPR (Sept. 5, 2017, 8:48 PM), http://www.npr.org/2017/09/05/548754723/5-things-you-should-know-about-daca.
[3] Richard Gonzales, 5 Questions About DACA Answered, NPR (Sept. 5, 2017, 8:48 PM), http://www.npr.org/2017/09/05/548754723/5-things-you-should-know-about-daca.
[4] Allissa Wickham, Trump Admin. Announces End To DACA Program, Law360 (Sept. 5, 2017, 11:16 PM), https://www.law360.com/articles/960391/trump-admin-announces-end-to-daca-program; Kat Greene, States Will Drop Suit If Gov’t Drops DACA, Paxton Says, Law360 (June 9, 2017, 10:01 AM), https://www.law360.com/articles/940033/states-will-drop-suit-if-gov-t-drops-daca-paxton-says.
[5] Jess Krochtengel, Texas Town Says Sanctuary City Ban is Unconstitutional, Law360 (May 9, 2017, 8:06 PM), https://www.law360.com/articles/922190.
[6] Julian Aguilar, Attorneys spar over Texas immigration law in federal court, The Texas Tribune (June 26, 2017, 7:00 PM), https://www.texastribune.org/2017/06/26/attorneys-spar-over-texas-immigration-law.
[7] Julian Aguilar, Attorneys spar over Texas immigration law in federal court, The Texas Tribune (June 26, 2017, 7:00 PM), https://www.texastribune.org/2017/06/26/attorneys-spar-over-texas-immigration-law.
[8] Jess Krochtengel, Texas Town Says Sanctuary City Ban is Unconstitutional, Law360 (May 9, 2017, 8:06 PM), https://www.law360.com/articles/922190.
[9] Kat Greene, Texas Ban On ‘Sanctuary Cities’ Blocked By Fed. Judge, Law360 (Aug. 30, 2017, 11:45 PM), https://www.law360.com/articles/959455/texas-ban-on-sanctuary-cities-blocked-by-fed-judge.
[10] Allissa Wickham, DOJ Asks 5th Circ. To Allow Part Of Sanctuary City Ban, Law360 (Sept. 12, 2017, 8:39 PM), https://www.law360.com/articles/962845/doj-asks-5th-circ-to-allow-part-of-sanctuary-city-ban.
[11] Arizona v. United States, 567 U.S. 387, 408 (2012).
[12] Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration & Customs Enforcement, https://www.ice.gov/287g (last visited Sept. 20, 2017).
[13] Text of S.B. 4, https://legiscan.com/TX/text/SB4/id/1608435/Texas-2017-SB4-Enrolled.html
[14] City of El Cenizo v. Texas, No. SA-17-CV-404-OLG (W.D. Tex. Aug. 30, 2017) (order granting preliminary injunction).
[15] Jason Buck, Federal judge rules that immigration detainers at center of Texas’ sanctuary cities ban are unconstitutional, San Antonio Express-News (June 9, 10:55 AM) http://www.expressnews.com/news/local/article/Federal-judge-rules-that-immigration-detainers-at-11206688.php.