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IRLI Files Brief in Fifth Circuit Supporting Texas Cooperative Immigration Law in El Cenizo Sanctuar


Ensuring the safety and security of our communities

(Washington, D.C.) - The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief (attached here) in federal circuit court that supports the constitutionality of SB 4. The new Texas statute requires all local police agencies in the state to honor immigration detainers issued by ICE and forbids cities, counties and local agencies from enacting or imposing non-cooperation or sanctuary policies. SB 4 also includes several strong enforcement provisions providing for sanctions against local officials who would defy the new law.

The lawsuit was filed in May by El Cenizo, a small border city on the Rio Grande River dividing Texas from Mexico where the town council believes many residents are illegal aliens. Federal district judge Orlando Garcia allowed more than a dozen other parties to join El Cenizo in suing Texas, ranging from major cities like Houston, Austin, and El Paso, to informal illegal alien rights groups like MOVE San Antonio and the Workers Defense Project. The U.S. Department of Justice also filed a lengthy brief challenging claims that SB 4 conflicts with federal law or the Constitution in any way.

Days before SB 4 was due to go into effect in September, Judge Garcia granted the El Cenizo plaintiffs an injunction blocking the statute, holding that it conflicted with federal immigration law, was too vaguely worded, and would leave local officials liable to civil rights suits because it would force them to violate the Fourth Amendment rights of detainees.

Texas Attorney General Ken Paxton immediately asked the Fifth Circuit for an emergency stay of the injunction. Last week, the Fifth Circuit agreed to temporarily allow much of SB 4 to go into effect, pending a full appeal.

IRLI's brief focuses on the flaws in Judge Garcia's holding that state and local police can't make arrests of illegal aliens wanted by ICE for deportation. The Judge wrote that the Fourth Amendment only allows Texas police to make arrests when they have probable cause to believe that a crime has been committed, and have obtained a criminal arrest warrant from a judge or magistrate. Since immigration removals aren't crimes, and the detainer notices issued by ICE aren't criminal warrants, Judge Garcia concluded that the constitution's requirement of "probable cause" could never be met and he blocked Texas from enforcing SB 4.

"Judge Garcia's injunction ignores the many Supreme Court rulings that state the Fourth Amendment's requirement of reasonableness is applied differently outside of the criminal-arrest context," explained Christopher Hajec, IRLI Director of Litigation. "Consideration of these issues shows unmistakably that federal seizures of illegal aliens comport with the Fourth Amendment. An illegal alien's right to individual liberty within the borders of this country is severely circumscribed to begin with. Such an alien has no right to be in the country at all, and at most a reduced right to move about freely within it. Because it is reasonable for state or local authorities to rely on the probable cause determinations of the federal government in detainer requests, state or local authorities do not violate the Fourth Amendment by complying with such requests."

Dale L. Wilcox, IRLI Executive Director, outlined the high stakes in this case were the Texas cities that seek to openly harbor illegal aliens to succeed: "It obviously is of grave public concern that this nation retain its full sovereign right to control its borders, and that right is meaningless without the constitutional power to exercise it. If new and more stringent requirements than those in current law were imposed by judges on the detention of the millions of illegal aliens in the U.S. by federal agents, the ability of this country to enforce its immigration laws, as a practical matter, would be at an end."

For additional information, contact: Brian Lonergan • 202-232-5590 • blonergan@irli.org


IRLI is a supporting organization of the Federation for American Immigration Reform.

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