Travis County to Comply With All ICE Detainers After 5th Circuit Ruling

Panel nixes lower court block on immigrant detention rule

Activists protest SB 4 at the Governor's office in May.
Activists protest SB 4 at the Governor's office in May. (Photo by Jana Birchum)

The largely conservative 5th Circuit Court of Appeals on Monday (Sept. 25) partially rolled back a ruling that had blocked anti-immigrant Senate Bill 4, a law meant to punish so-called sanctuary cities.

As a result, the Travis County Sheriff’s Office – which gained national attention for limiting its participation in federal immigration requests – will now honor all U.S. Immigrations and Customs Enforcement (ICE) detainers.

U.S. Judge Orlando Garcia gave immigrants' rights groups cause to celebrate last month when he temporarily halted major provisions of SB 4 on the basis of unconstitutionality in a suit filed by Texas cities, including San Antonio and Austin. Those celebrations have dampened now that the 5th Circuit’s three-judge panel ruled Texas can go ahead with a controversial provision that forces cities and counties to “honor and fulfill” immigration detainer requests, pending the final results of the appeal. (The 5th Circuit will hear a full case on Nov. 6.)

ICE detainers are a request for local jails to hold those suspected of being undocumented for possible deportation. SB 4 “does not require detention pursuant to every ICE detainer request; rather, the ‘comply with, honor, and fulfill’ provision mandates that local agencies cooperate according to existing ICE detainer practice and law,” the panel also noted.

The temporary ruling most directly affects the ICE policies at the Travis County Sheriff’s Office, led by Sally Hernandez, who faced the ire from Gov. Greg Abbott and anti-immigrant politicians as they peddled SB 4 at the Capitol. Standing firm, Hernandez chose to limit her automatic compliance with ICE detainer requests for those charged with or convicted of capital murder, murder, aggravated sexual assault, or human trafficking. TCSO say they have now “updated” their policy to comply with the 5th Circuit’s ruling.

“As I have maintained throughout this process, I have not violated federal or state law, nor do I intend to,” said Hernandez in an emailed statement. “Contrary to the state’s position, SB 4 is neither clear nor simple. The 5th Circuit and the trial court have both recognized the complexity of the issues, some of which were conceded by the state. I look forward to further clarification from the courts after oral argument in November.”

Amid the legal murkiness, some, including plaintiff attorney Thomas A. Saenz, president and general counsel of MALDEF, say “local jurisdictions remain free to decline requests they believe could violate constitutional rights or other laws.”

Not all of Garcia’s injunction was voided. The panel kept in place the lower court’s block on penalties for local agencies and campus police adopting or enforcing policies that “materially limit” immigration enforcement, and a provision that would have punished public officials for endorsing policies against SB 4, which ran counter to free speech rights. Laughably, the 5th Circuit found that the immigrant rights plaintiffs wouldn’t suffer any harm but that Texas would indeed face “irreparable injury” if parts of the discriminatory law did not go into effect. The judges also believe that state attorneys will ultimately succeed on the merits of at least two of their major claims.

While Attorney General Ken Paxton applauded the unanimous court decision (as expected), immigrant advocacy organizations and plaintiff legal groups expressed disappointment. “The remainder of this decision puts millions of people in Texas at risk for profiling and discrimination, and could lead to unnecessary and harmful turmoil to cities and counties,” said Efrén C. Olivares, racial and economic justice program director with the Texas Civil Rights Project. Local elected representatives sounded off about the ruling as well. State Rep. Eddie Rodriguez, D-Austin, policy chair for the Mexican American Legislative Caucus, said “Texans cannot wait nor afford another round of years-long litigation while this law tears families apart and sows distrust of and confusion among our law enforcement agencies.”

Following the ruling, District 4 Council Member Greg Casar called on City Council – and other municipalities – to help pass policies that protect civil rights. Casar said the 5th Circuit has left cities with some discretion when it comes to how local governments use their scarce resources on immigration policies. “While the ruling was damaging it did leave us some room to make clear our priority is on criminal enforcement and public safety,” he said.

Casar said he’s working around the clock with community and legal groups to craft a policy that reinforces those priorities as soon as possible. He’s also working on a transparency measure to combat racial profiling by law enforcement through publicly documenting instances where police ask about citizenship status of those they stop. Among its provisions, SB 4 includes a “papers, please”-style rule that allows officers to inquire about the immigration status of people they detain – a portion of SB 4 Garcia did not stop in his injunction.

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KEYWORDS FOR THIS POST

Immigration, Greg Casar, 5th Circuit Court of Appeals, Senate Bill 4

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