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Texas' law banning sanctuary policies is upheld in court. FILE - In this Oct. 31, 2017 photo, Immigration and Customs Enforcement officers in El Paso, Texas arrest a man for criminal sexual activity. (Credit: ICE.gov)

After court upholds Texas sanctuary city ban, enforcement is the next challenge


WASHINGTON (Sinclair Broadcast Group) — Texas advocates of strict immigration enforcement were handed a big victory on Tuesday when the Fifth Circuit Court of Appeals ruled that the state law banning sanctuary policieswould be allowed to go into effect.

Opponents of the law will continue to fight the constitutionality of the sanctuary city ban in district court, but until that case is resolved Texas will be enacting a series of measures to ensure state and local law enforcement and elected officials comply with federal immigration enforcement.

The law, SB4, was passed and signed into law by Gov. Greg Abbott in May 2017. It legally prohibits local police from limiting their cooperation with federal immigration enforcement. The law also allows officers to ask anyone they detain about their immigration status and includes another provision allowing for the arrest or fining of any police officer, sheriff or local official who restricts the enforcement of federal immigration laws.

In the coming weeks, Texas law enforcement will face the task of enacting the new law. As the new policy is rolled out, it will be under close scrutiny by the plaintiffs who continue to litigate the constitutionality of SB4 and by others who are wary of the broader repercussions of the sanctuary ban.

The Texas Department of Public Safety (DPS) had already implemented a number of anti-sanctuary policies before the Tuesday court ruling. In a policy statement provided to Sinclair Broadcast Group, Texas DPS outlined how its officers interact with federal immigration enforcement authorities.

Texas Department of Public Safety - Sanctuary Policies by lbernstein on Scribd

The department asserted that its officers will "cooperate and assist" federal authorities and will inquire about an individual's immigration status when there is a reasonable suspicion the person is in the United States unlawfully. If an officer has a reasonable suspicion their suspect is in the country illegally, he or she will "immediately attempt to contact a federal immigration officer."

The DPS policy continues that a suspect detained by police can be held for longer period of time "upon the request, instruction or approval of federal immigration officer." In other words, under conditions outlined in an ICE detainer.

Cato Institute immigration policy analyst David Bier, is deeply concerned by court decision uphold these policies, saying the new law in effect, requires state and local police to give up their discretion to federal immigration authorities.

"What we're talking about here is the federal government running a name through a database and coming up with evidence the person is in the country illegally or could be removed and then telling state and local police to detain that person," Bier argued.

The Texas Department of Public Safety asserted that officers "will not independently enforce" federal immigration law, but Bier is not convinced.

"It's not a matter of independently enforcing immigration law, it's about doing what the federal government wants you to do, which is to detain people and arrest them on behalf of federal authorities," he said.

Moreover, the new law will allow officers to ask witnesses and victims of crime whether they are in the country legally. The DPS says the inquiry is intended to help individuals who assist law enforcement get the appropriate protection.

Advocates of sanctuary policies have regularly argued that by ICE further enlisting the help of local police, it will make immigrant communities less likely to report crimes and drive a wedge between those communities and law enforcement.

In a recent interview with Sinclair Broadcast Group, ICE Director Thomas Homan said the argument was false, explaining that a person who witnesses a crime or is a victim can receive certain benefits and protections, even if they are undocumented.

Sarah Pierce, policy analyst at the Migration Policy Institute, explained that Homan's assertion likely will not apply under the Texas state law.

"One thing about SB4 is it actually allows officers who are in the process of investigating crimes to investigate the status of victims in those crimes. That is the exact provision that advocates on behalf of sanctuary cities are concerned about," Pierce said.

In the past year, sanctuary policies have become a central immigration issue around the country.

During his first month in office, President Donald Trump issued an executive order attempting to block federal funding to jurisdictions that do not fully cooperate with ICE. Though the order was permanently struck down by a federal judge, it gave rise to scores of statewide bills.

Even some of the states that already have bans on sanctuary policies, like Alabama, Arizona, Georgia, North Carolina, South Carolina and Tennessee, sought in 2017, to add teeth to their laws. In North Carolina, for example, lawmakers are considering a proposal to cut off state revenue to sanctuary jurisdictions.

In the first half of 2017, state legislatures introduced more than 120 laws both for and against sanctuary policies, according to the National Conference of State Legislatures.

California, by far, passed the most consequential laws in 2017, effectively making the Golden State a sanctuary state. In response to those laws, that the U.S. Justice Department said are intended to "frustrate" federal immigration enforcement, the Trump administration sued the State of California on March 6.

According to the federal government, the state laws unlawfully impede federal immigration law, "the supreme law of the land." According to state officials, the laws prohibit the federal government from commandeering local police or local resources to do the work of federal immigration enforcement officers.

Even with a raft of sanctuary legislation moving through statehouses around the country, Texas and in California are most likely going to set the example for how other states approach the issue.

"Texas, in general, has really shown an interest in becoming a leader among states that favor limits on immigration," Pierce explained. "I think the ruling specifically will definitely encourage other states if they're considering anti-sanctuary policies to go forward with those."

Bier asserted that the Texas court decision will absolutely set a precedent for other states. State lawmakers will look at the case as "a clear signal" of how far they can go when it comes to local immigration enforcement, he said. "I would be looking for new statutes to come out in the coming weeks."

Not only is the issue of sanctuary policy fueling a heated national political debate, but it is legally murky. That is why Pierce believes a Supreme Court hearing of the issues involved in the California and Texas sanctuary suits could provide some needed guideposts moving forward.

"We don't have a lot of other finished cases on this," Pierce explained. "With these cases, in Texas and California, if those continue to go forward and we end up getting Supreme Court rulings in those cases, maybe that will help paint a better picture."

The two cases against the Texas sanctuary ban and the California permission are legally very different, Pierce continued. But in both cases, they deal with the rights states and local jurisdictions have compared to the rights of the federal government.

The Texas law has already cleared one major legal hurdle, when all but one provision was upheld by the appeals court. The state may also be able to draw on the 2012 Supreme Court ruling that upheld statutes in Arizona's controversial state immigration law, which has some similarities to SB4. For example, the ruling allowed Arizona to prohibit local jurisdictions from limiting cooperation with federal immigration enforcement and also allowed state residents to sue officials or jurisdictions that similarly restrict federal immigration enforcement.

According to David Bier, the issue is not going to be resolved legislatively. It will have to happen in the courts.

"It's one of the most contentious issues already," he said. "I don't think there's necessarily a resolution politically, but I do think the Supreme Court will hear this case and lay down the law on what states and localities are allowed to do in this area."

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