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US appeals court lets parts of sanctuary cities ban go into effect

AUSTIN — A federal appeals court on Monday ruled that some provisions of Texas’ ban on so-called sanctuary cities can go into effect, partially lifting a Texas judge’s order that blocked key provisions of the law.

A three-judge panel of the U.S. Fifth Circuit Court of Appeals found that two provisions blocked by U.S. District Judge Orlando Garcia in August created “no significant injury to the plaintiffs,” but did cause “irreparable injury to Texas,” and that other elements of the law could survive if some of the language is altered.

The law, called Senate Bill 4, prohibits policies that prevent law enforcement officers from enforcing federal immigration laws and enacts steep penalties for noncompliance. When the Legislature passed the law earlier this year — a key victory for conservative lawmakers — it drew legal challenges from the state’s largest cities and counties, including El Paso and El Paso County.

In August, Garcia issued a temporary injunction blocking implementation of the central provisions of the law and questioned the constitutionality of the entire act, writing that “the mandates, prohibitions, penalties, and sanctions” established in the law “impose substantial burdens on local entities.”

Texas appealed the decision to the Fifth Circuit and asked for a stay of the injunction. The panel heard arguments on the case Friday in New Orleans.

The decision from the appeals court lifts Garcia’s block of a provision in the law that required law enforcement to comply with federal immigration detainers — when U.S. Immigration and Customs Enforcement asks local jails to hold an individual longer than needed so he or she can be taken into federal custody.

However, the decision states that if individuals provide evidence that they are in the country legally, law enforcement does not have to comply with a detainer request.

Texas Attorney General Ken Paxton lauded Monday’s court decision as a victory.

“We are pleased today’s 5th Circuit ruling will allow Texas to strengthen public safety by implementing the key components of Senate Bill 4,” Paxton said in a statement. “Enforcing immigration law helps prevent dangerous criminals from being released into Texas communities. I am confident Senate Bill 4 will be found constitutional and ultimately upheld.”

The decision also means that law enforcement cannot prohibit cooperation between officers and immigration enforcement authorities, another section of the law blocked by Garcia.

Brooke Bischoff, an El Paso-based attorney with the Texas Civil Rights Project, which is representing the Texas Organizing Project Education Fund in the lawsuit, said the court’s decision is only in effect until the court rules on the state’s entire appeal. Arguments for that case are scheduled for November.

“We are confident that our arguments during the appeal in November will be strong and we haven’t lost hope,” Bischoff said, adding that Monday’s decision “is just a guide for what we need to emphasize for our pleadings and arguments” later this year.

“This is discouraging, but we believe that SB 4 is unconstitutional and we’re going to continue to argue that through and through,” she said.

Some provisions of the law will remain blocked under Garcia’s order, including a section that states local officials who violate the ban could face fines of as much as $25,000 per day and removal from office or jail time. A provision preventing state employees from “endorsing” the law or speaking out against it also will remain blocked.

Monday’s decision also pointed to some areas of the law that prevent officials from adopting policies that “materially limit” cooperation with immigration authorities as being vague, and suggested that the language should be clarified.

State Sen. José Rodríguez, D-El Paso, celebrated the decision as a small victory and said he is confident the final case against the law will find it to be unconstitutional.

“The fact that a court, considered to be one of the most conservative in the country, upheld a pre-enforcement ban on key provisions of the law speaks volumes,” Rodríguez said in a statement. “I’m confident in the case against SB 4, which I and many others warned during debate had the fatal flaws of being anti-immigrant in motive and unconstitutional in construction, and look forward to the final deliberation by the courts.”

This story originally appeared 9/25/2017 in the El Paso Times.