After Governor Abbott Signs SB4 into Law, a Legal Battle Is Brewing

A protest last summer.
A protest last summer.
Gilbert Bernal
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When immigration attorney Frances Valdez, an organizer with United We Dream, holds know-your-rights sessions for undocumented immigrants, one of her biggest pieces of advice is to remain silent.

A traffic stop for a broken taillight, she said, can be immensely nerve-wracking for an undocumented person. If they have no way of identifying themselves, they can be arrested for failing to provide ID. If they have an expired driver's license, they can be arrested for driving with an invalid license. If they are able to identify themselves, Valdez said, then the next thing that she and other organizers advise immigrants to do is to not say anything else. Because if it's only a traffic violation, Valdez said, then hopefully they are sent on their way.

"But if the next question is, 'what's your immigration status,' what do we tell people?" Valdez said. "If they don't answer, is that another reason to arrest a person?  That's the point where we as immigration attorneys are at right now: How should we tell people to protect themselves? If they do answer the question, what will that lead to?"

Governor Greg Abbott signed SB4 into law Sunday evening in a five-minute long Facebook live post. He said: "Citizens expect law enforcement officers to enforce the law, and citizens deserve law breakers to face legal consequences. Texans expect us to keep them safe, and that is exactly what we are going to do by me signing this law."

He assured Texans that everything in this bill would withstand scrutiny by the Supreme Court — yet immigration advocacy groups and attorneys have already hinted that a possible legal battle may be the next chapter. The bill gives local police the federal power to ask someone's immigration status not just during an arrest, but while detaining a person for any reason. Should police chiefs or sheriffs create a policy that "prohibits enforcement of federal immigration laws," or if sheriffs don't honor ICE detainers, they can be charged with a crime and removed from office.

Despite the fact that thousands of people have swarmed the Capitol in the last few months to protest or testify against the bill — including law enforcement leaders in Texas's seven largest cities — Republican legislators and Abbott moved full steam ahead.

"Everything seemed to be already decided. We were bringing up legal points, important points about the Constitution, about unlawful detention, about policing — and it just seemed like this was a bill that made political points and there would be no actual listening," said Lance Curtright, a San Antonio-based immigration lawyer. "There were important people testifying against it — police leaders, saying hit the breaks on this — and they just didn't listen."

Curtright testified against the bill in the Senate about legal concerns he and other attorneys had with the bill and even sent a letter to Attorney General Ken Paxton about the problems. First and foremost, Curtright said the bill invites racial profiling, which he said can amount to an equal protection violation in court. When an officer detains someone with a reasonable suspicion that they did something wrong, Curtright said, how are they going to decide which people to ask about their immigration status?

"Anglos might not be asked to show their papers. Hispanics will," he said. "So you have two similarly situated people being arrested who are being treated differently. To pretend that the police will not have to engage in that criteria is putting your head in the sand. They're going to have to engage in racial profiling from the beginning, which is against the U.S. Constitution."

Curtright said that, if SB 4 were challenged on these grounds, Texas would have to show this law serves a compelling state interest — which would, without a doubt, be enforcement of immigration laws, he said. "The problem with that is that it's not [the state's] job," Curtright said. "That is the federal government's job."

The second area Curtright said may present legal challenges is the provision of SB 4 that requires counties to comply with U.S. Immigration and Customs Enforcement detainers. A Texas Tribune investigation found that county jails in Texas honor 99 percent of immigration detainer requests that ICE places on suspected undocumented immigrants arrested by local police. Still, they are only requests, and federal law allows counties to reject detainer requests (Travis County Sheriff Sally Hernandez faced the wrath of Governor Abbott earlier this year after announcing a new policy in which she would only honor requests on serious violent offenders, unless ICE had a warrant.)

The problem with SB 4, Curtright said, is that it not only makes the detainers mandatory — threatening to punish sheriffs with a Class A misdemeanor. But also, immigration detainers themselves have faced legal challenges in various federal courts across the country, most notably in Illinois, where a federal judge ruled ICE immigration detainers are not lawful unless ICE has a warrant. Twice in Pennsylvania, the ACLU successfully argued in federal court that counties were liable for holding U.S. citizens on ICE detainers who would have been released from jail but for the erroneous detainer.

Holding someone in jail solely on an ICE detainer, Curtright said, is particularly problematic — because even if the person really is undocumented, being in the country illegally is a civil violation, not an arrestable, criminal offense.

"So when someone posts a bond or completes their sentence, the government is not allowed to hold them without a charge, and a detainer is not a warrant. It's merely a request from the federal government that [the sheriff] hold the person until ICE can pick them up. We're going to turn into a 'detain first, ask questions' later society — a police state. Which is ironic, because the police don't want this."

Frances Valdez, from United We Dream, said that while she's hoping for legal action, she has tried not to get too optimistic it, given Texas is the very state where a federal judge shot down the Deferred Action for Parents of Americans program. She doesn't sugar coat it when people come to her afraid, worried they might end up in ICE custody following a traffic stop, because she knows it can and will happen.

"I'm telling people, they need to organize," she said. "The time has come where you can't just sit around and wait to see what happens. The government is putting into place legalized oppression. That's what we're living in."

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