An Anti-Sanctuary Bill that Doesn't Quite Get to the Goal Line

By Dan Cadman on February 11, 2018

Several days ago, when speaking of the death of an NFL player and his Uber driver, both of whom were apparently killed in Indianapolis by a multiply deported illegal alien driving drunk with no license, I mentioned that Rep. Todd Rokita (R-Ind.) has introduced a bill to do something about sanctuary jurisdictions and police agencies that refuse to honor immigration detainers — both of which were relevant to the deaths.

Rep. Rokita's bill, HR 4915, the "Stopping Lawless Actions of Politicians (SLAP) Act of 2018", has two main thrusts:

  • To establish penalties for politicians and law enforcement leaders who enact rules or policies that require police and jails to release illegal aliens despite the filing of a detainer by Immigration and Customs Enforcement (ICE), and
  • To provide legal protection in the form of immunities to law enforcement and correctional agencies that honor the detainers, so that they cannot be sued for following this course.

The bill achieves its goal where the second matter — protecting law enforcement agencies from lawsuits designed to frustrate cooperation with immigration authorities — is concerned, because it states that when honoring such detainers, law enforcement officers are acting as federal immigration agents and therefore entitled to the same qualified immunities.

However, the bill fails to reach the goal line where the critically important first matter — establishing penalties for sanctuary leaders — is concerned because of a flaw in the way it was drafted. It proposes to create a new provision in the federal criminal code that would read as follows:

Whoever, being a State or local official having custody of an individual, knowingly releases an alien subject to a detainer issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)(1)), shall be fined under this title or imprisoned not more than five years, or both.

Apparently whoever drafted the language of the bill didn't look closely enough at exactly what Section 287(d)(1) currently says:

(d) Detainer of aliens for violation of controlled substances laws. In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—

(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States .... [Emphasis in original.]

The language is crystal clear: It only relates to detainers filed against aliens who have violated narcotics laws, and therefore would not punish sanctuary leaders if the detainer that wasn't honored related to anything else, including, notably, crimes such as murder, sexual assault, child pornography, or other heinous crimes.

Understanding why Section 287(d)(1) reads the way it does requires a step back in time, when virtually all law enforcement organizations honored immigration detainers. The problem then was that, because of a serious lack of human resources, agents of the Immigration and Naturalization Service's Investigations and Deportation Divisions sometimes didn't file detainers, because they knew— especially if the law enforcement organization was geographically remote — that they would unlikely be able to respond in a timely fashion. As I have mentioned repeatedly, there was a time when there were significantly fewer than 1,000 investigative agents available to conduct their work for the entire United States.

Thus, while detainers were routinely filed for serious offenders, among those who fell through the cracks were second-tier drug offenders. This so angered police and sheriffs offices that they lobbied Congress — successfully, as evidenced by the very existence of the section in question — to require INS agents to respond by filing a detainer if the arresting police agency requested it.

Move forward a few decades, and we now have substantially more agents and officers in ICE, the successor agency that's responsible for what used to be INS's investigative and deportation functions. Sadly, though, we now also have police and sheriff's departments, and even some correctional agencies, that decline to honor immigration detainers.

Although Rep. Rokita gets high marks for wanting to reverse that unwholesome trend, his bill will fail in punishing pro-sanctuary politicians except in the limited situation where detainers filed in narcotics cases are concerned. This is easily rectified.

The way to fix the unacceptably delimiting flaw is to add one more section to the representative's bill, which amends the existing language of INA Sec. 287(d)(1) so as to strike the phrase "for violation of controlled substance laws" contained in the header in bold text, and do the same for the similar phrase "relating to controlled substances" contained in the substantive portion of the follow-on sentence.

Simple enough. But until that happens, this bill just won't reach the goal line.