As an Immigration lawyer in Houston, I follow Texas legislative activity closely. The right to determine who is allowed to come in and out of the United States is generally considered an issue in the control of the federal government. But in recent years, there have been several state laws introduced that are designed to give power to the state of Texas to enforce immigration laws. In 2017, the Texas legislature passed a new law called Senate Bill 4 ("Texas SB4"). SB4 has raised concern in immigrant communities, and several Texas cities have sued the State of Texas to try to stop it from going into effect.
What is Texas SB4?
SB4 is a law passed by the Texas legislature with the goal of establishing a statewide policy of cooperation with federal immigration authorities enforcing immigration laws. This included preventing cities from declaring themselves “sanctuary cities” and authorizing local law enforcement officers to verify the immigration status of anyone who is a suspect of a crime , witnessed a crime, or is a victim of a crime. Click this link to read more about Texas SB4.
Several cities in Texas opposed SB4. One reason was that this law it would make communities less safe because immigrants would avoid reporting crimes out of fear of being arrested. Another reason for opposition was that the SB4 interfered with elected city and county officials’ First Amendment right to free speech by prohibiting them from expressing support for sanctuary city policies.
Another concern was that this law would give police officers the ability to stop virtually anyone to inquire about their immigration status, which would violate our Fourth Amendment right to be free of unreasonable searches by government officials.
On May 8, 2017, a group of cities around the state filed a lawsuit was filed in response to Senate Bill 4 passed by the Texas Legislature and was set to go into effect on Sept 1, 2017. On August 30, 2017, a federal district judge entered a preliminary injunction blocking parts of of Senate Bill 4 from going into effect. The injunction blocked the state of Texas from implementing and enforcing several parts of SB4, including its requirement that local governments be prohibited from passing laws or enacting policies to stop cities or local governments from working with federal immigration officials.
This would include a county sheriff’s office providing information to ICE in order to facilitate the arrest and detention of non-citizens with criminal records. The injunction also blocked SB4’s prohibition on sanctuary policies, which mandated civil and criminal punishments against local and state government officials who support laws or policies that limit local enforcement of immigration laws The injunction also blocked SB4’s requirement that local law enforcement officers ask about the immigration status of people who are stopped or arrested.
The state of Texas immediately announced that it would appeal this decision to the 5th Circuit Court of Appeals.
Is SB4 Blocked?
The state of Texas did appeal the decision to block parts of SB4 from going into effect. On ______, the Fifth Circuit Court of Appeals granted a stay of the injunction against two of SB4’s provisions.
The injunction against the section of SB4 prohibiting local entities (such as cities or municipalities) from enacting policies to limit or stop local government officials from “assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement” was lifted.
The injunction on the part of SB4 stating that local entity or campus police department may not “adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws” was partially stayed.
The Fifth Circuit Court stayed the injunction against this section, allowing it to go into effect, but noting that the injunction would remain in place with respect to the word “endorse” because it is too broad. Prohibiting local government officials or campus police from endorsing a sanctuary policy may infringe on their right to free speech.
What Happens Now with Senate Bill 4?
The Fifth Circuit Court of Appeals partly granted and partly denied the requested stay for the injunctions placed on SB4. The Fifth Circuit Court reasoned that the state of Texas was likely to win on the constitutionality of these two provisions and therefore granted stays of the injunctions against them. The Fifth Circuit Court has set a hearing for November 6, 2017 to hear arguments from the cities that say that Senate Bill 4 is unconstitutional. The controversy surrounding Senate Bill 4 is expected to go on for weeks or longer in Texas.
What Will Happen If I am Arrested by Police because I am an Undocumented Immigrant?
With the partial grant of two sections of SB4, local law enforcement agencies throughout Texas will not be responsible for enforcing Federal Law, but will have to honor Federal Immigration holds for people who are here illegally. If you are arrested local police agency and found to have a Federal Immigration hold, local law enforcement agencies are now required to hold you until told otherwise.
Article 2.251(b) of Senate Bill 4, does offer some type of relief for those who are detained. If you are detained and are able to provide proof of your lawful immigration status, law enforcement agencies are not required to comply with or fulfill a detainer request for a Federal Immigration Hold. The Article 2.251(b) does not limit the permissible proof to those listed within the statute.
ICE Raids and Enforcement Operations
In early September 2017, ICE prepared to conduct the largest raid of its kind. ICE later announced that it was cancelling the operation only when it became clear that Hurricane Irma would hit Florida and the timing for the raid might affect people’s decision to evacuate to safety. However, ICE noted in a statement that it would continue to target and arrest “criminal aliens and other individuals who are in violation of our nation’s immigration laws in non-affected areas of the country…”
For Texans, this means that no matter what happens with SB4, ICE will continue to target and arrest undocumented immigrants, including those with no criminal history.
What Can I Do If I'm Worried About Being Arrested by Immigration?There is no final decision on SB4 yet. A hearing is set for November 6th, and the final decision may be issued months later. Right now, there is no requirement that law enforcement officers check your immigration status. They may choose to do so during a lawful stop. If you have proof of your immigration status, carry it with you and be prepared to show it if you are stopped by local law enforcement. Local law enforcement can provide your information to ICE.
If you do not have legal status, take action now. Understand your rights regarding traffic stops and questions about your immigration status. Get advice from an experienced immigration attorney to figure out what you can do to protect yourself or be prepared if you are arrested and placed in ICE custody. Understand if you are eligible for an immigration bond, and prepare for it if you are.