The Laken Riley Act Spells Chaos for the Immigration System
This is already a problem for undocumented immigrants in the criminal legal system—where these theoretically two separate parts of the legal system intersect. As Silky Shah, executive director of Detention Watch Network, explained when we spoke last week, there are multiple points where ICE can pull an undocumented person moving through the criminal legal system into immigration detention and deportation proceedings instead. “At every single stage, whether it’s the initial interaction, the booking process—especially the booking process is a place where a lot of people get caught up—but also when they’re in the jail, sometimes they’re interacting with an ICE agent, and once they go to trial, they might be referred to a U.S. attorney for prosecution.” This bill, she said, “it’s really expanding the possibility of that happening.” It’s expanding something that is already happening. Under the Laken Riley Act, Shah explained, the detention and deportation process could all start at the first point of contact with law enforcement. “What this bill does is say, actually, we’re not even going to go through the process of this person actually being convicted of said crime. We’re going to say that as soon as somebody’s charged, we’re going to go ahead and put them into deportation … and also, we’re requiring it.” All this is largely absent from the public debate on the bill, which emerged from anti-immigrant rhetoric divorced from the reality of the criminal legal system.
The second part of the bill has itself almost entirely been subsumed in the limited debate over due process and mandatory detention. Reichlin-Melnick explained that while the mandatory detention provision essentially overrides immigration officers’ and judges’ discretion about who to detain or release, there’s far more than that in the bill. It also gives power to state attorneys general to dictate immigration enforcement, if that state or its residents “experience harm.”
What does that look like? Reichlin-Melnick imagined this scenario: “Texas has a number of sheriffs who are very, very, pro-deportation,” including some who have sued the Biden administration in the past, challenging immigration policy, “alleging that they are not detaining enough people.” If one of those sheriffs sees that officers have arrested some people who may be undocumented on misdemeanor shoplifting offenses but ICE hasn’t come to pick those people up, that sheriff then phones “his good friend Ken Paxton”—the Texas attorney general—“and says, Ken, I have all these people here. We detained them. They were arrested for shoplifting. You know, they’re in our jail right now, awaiting a bail hearing, and ICE isn’t here, and ICE should be here to pick up. Under this Laken Riley Act, it could see a very good argument that Ken Paxton could then go to federal court, sue ICE, and say, ICE, you are violating the requirements of this law, and you have to come pick these people up.” Or say ICE did pick them up, and an immigration judge released them, as judges currently have the discretion to do (but would not under the Laken Riley Act). A state attorney general could potentially sue the Department of Justice, said Reichlin-Melnick. Is the failure to detain someone who is undocumented and accused of stealing a pack of gum “harming” a state? That’s the argument. “Harm” in the bill is defined broadly, which will help those suits make it past the inevitable, reasonable challenges to their standing. And there could be lots of these lawsuits, particularly from attorneys general who have already filed federal lawsuits challenging immigration policies, like Paxton. This could create chaos in the courts, giving a state attorney general a legal cudgel to try to get the kind of immigration enforcement they want.
