Appeals court keeps hold on SB 4 ahead of arguments on Texas' sweeping immigration law

In a late-night decision Tuesday, a three-judge panel on the 5th U.S. Circuit Court of Appeals extended a temporary block on Senate Bill 4 — Texas' sweeping and controversial immigration law that would let state and local law enforcement officers arrest, detain and deport people suspected of entering the U.S. in Texas from Mexico without legal authorization.

Maintaining the status quo after a seesaw of judicial opinions in the past week, the New Orleans-based appeals court will keep SB 4 from taking effect ahead of an April 3 hearing on the law's legality. The U.S. Justice Department has sued Texas over SB 4, arguing that the state-level immigration policy is unconstitutional as it oversteps into the federal government's authority.

In the Tuesday night decision, the court walked through a number of issues it must contend with in ruling whether the law is constitutional, including the federal government's standing to prevent SB 4 from ever taking effect, conflicting state and federal positions on granting asylum, and concerns that individuals removed under the law would be forced to relocate to Mexico regardless of their country of origin.

SB 4 was allowed to take effect for several hours last week, after the U.S. Supreme Court reversed its hold on the law, allowing an earlier ruling by a three-judge panel of the appeals court to take effect and clearing the way for SB 4 to be enforced. Later the same day, the 5th Circuit reversed its prior ruling, again placing the Texas immigration law on hold.

"For nearly 150 years, the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens—is exclusively a federal power," the appeals court panel wrote in its 2-1 decision to keep the law on hold. "Despite this fundamental axiom, SB 4 creates separate, distinct state criminal offenses and related procedures regarding unauthorized entry of noncitizens into Texas from outside the country and their removal."

Ruling in favor of keeping the hold in place Tuesday, Chief Judge Priscilla Richman and Judge Irma Carrillo Ramirez wrote that there is "no basis in the precedent" to keep the Justice Department from seeking to enjoin the law and that contradictory and repetitive provisions housed in SB 4 step on existing federal immigration processes while neglecting precedent established by the Supreme Court.

More:5th Circuit Court of Appeals leaves SB 4 on hold after dueling orders on Texas immigration law

Of major concern for the judges was Texas' removal process under SB 4 as its mechanism for deportation is anchored by a criminal proceeding, a process that is a civil matter under federal law.

Texas' law, the court wrote, does not allow for the same process, meaning that a person who is not a U.S. citizen could be removed before asylum proceedings are concluded. Further, those deportations would mandate that any removals be to Mexico in a process that "the United States would have no voice in the matter."

"Under federal law, a noncitizen who does not enter through a designated port of arrival may nevertheless seek asylum," the judges wrote. "A claim for asylum can be pursued before, during, or after the conclusion of prosecution under federal law for illegal entry."

Additionally, the majority opinion said that provisions of SB 4 criminalize behaviors that are already prohibited under federal law and that previous Supreme Court opinions stemming from a 2012 immigration case based on an Arizona law indicates that Texas will fall short in demonstrating why its law should be allowed to take effect as deliberations continue.

"It is evident that the Texas entry and removal laws also significantly impair the exercise of discretion by federal immigration officials," the judges wrote.

In an amicus brief filed last week, Mexico's federal government railed against SB 4 and said in announcing its brief that Texas' law creates "an atmosphere of uncertainty, fear and vulnerability" while also denigrating its bilateral relationship with the U.S. and subjecting Mexicans to criminalization for “looking Latino.”

The Legislature passed SB 4 in November to codify a series of penalties for anyone suspected of crossing into Texas from Mexico other than through an international port of entry. The penalties range from a Class B misdemeanor to a second-degree felony. The law allows the state's police to arrest migrants suspected of entering the U.S. illegally and to force them to accept a magistrate judge's deportation order or face stiffer criminal penalties for noncompliance.

SB 4, which Gov. Greg Abbott signed into law in December, had been scheduled to take effect March 5, but its implementation was delayed after the Justice Department and civil rights groups sued Texas.

In securing an initial hold on SB 4 in a federal court in Austin in February, federal prosecutors have continued to argue that the law is out of the bounds of state authority and seeks to usurp federal power — a position that has now been presented in front of the Supreme Court.

When did Texas SB 4 take effect?

On March 19, SB 4 was allowed to take effect for about nine hours after the Supreme Court ruled to dismiss its previous stay on the law — which was first issued by the high court on March 4 — allowing a previous ruling by the 5th Circuit to allow the Texas law to take effect while it considered its constitutionality.

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Around 10 p.m. that same day, the 5th Circuit reversed its previous order and again temporarily blocked the law and scheduled an emergency hearing for the following morning.

During that March 20 hearing, the federal government continued to paint the law as wholly unconstitutional while attorneys for Texas defended it despite lacking concrete answers on how the state provisions would be carried out and comply with federal standards.

In a joint statement Wednesday morning, groups involved in the case — including the ACLU, the ACLU of Texas, Las Americas Immigrant Advocacy Center, American Gateways, the Texas Civil Rights Project and El Paso County — celebrated the 5th Circuit's decision to keep the "cruel, harmful, and blatantly illegal" law from taking effect as the courts weigh its constitutionality.

"We appreciate the decision to keep this unconstitutional and extreme anti-immigrant law from going into effect. SB 4 threatens our most basic civil and human rights as citizens and noncitizens alike," said David Donatti, senior staff attorney for the ACLU of Texas. "We will continue our efforts to prevent this hateful law from ever harming our state.”

“The court did the right thing in preventing the implementation of SB 4," said El Paso County attorney Jo Anne Bernal. "We will continue seeking a court decision permanently enjoining this law that has already caused so much fear and divisiveness in our community.”

However, in dissenting with the 5th Circuit panel's 2-1 decision, Judge Andrew Oldham said he would have allowed SB 4 to take effect, arguing that not all elements of the Texas immigration policy are unconstitutional and federal attorneys will be unlikely to successfully make that argument.

More:Hundreds of migrants breach razor wire barrier in El Paso as Texas SB 4 remains in limbo

Oldham said the argument for blocking SB 4 "is based on hypotheticals" and that Texas lawmakers and judges should be allowed to "retain at least some of its sovereignty" in addressing what has been likened to an active invasion of the state.

"Today’s decision means that we’ll likely never know how Texas’s state courts and its state law-enforcement officers would have implemented SB 4," Oldham wrote.

With the appeals court expecting to hear more arguments on the case April 3, a final decision on whether SB 4 is constitutional would possibly come after any appeals to the Supreme Court, which has already expressed its interest in the immigration law dispute.