The Laken Riley Act is a good start, but it needs funding

Rep. Mike Collins (R-Ga.) introduced the Laken Riley Act to “give local law enforcement and ICE more tools to fight illegal immigrants who commit crime in the United States.” It was named after a 22-year-old nursing student murdered by an undocumented immigrant.

The act passed in the House with 251 yeas and 170 nays. Sen. Katie Britt (R-Ala.) introduced an identical version in the Senate, where it also passed, 64 to 35.

The bill would require U.S. Immigration and Customs Enforcement to issue detainers and take custody of undocumented immigrants who are charged with, arrested for, convicted of or admit committing acts “which constitute the essential elements of a burglary, theft, larceny, or shoplifting offense.”

Without rapidly executed mass deportations, however, the act’s mandatory detention provisions could result in indefinite jail sentences for detained immigrants, who will have to wait a long time to get a hearing, because the immigration court has a backlog of nearly 4 million cases. And it remains to be seen whether Congress will give the new border czar, Tom Homan, the funding he needs to conduct mass deportations.

The bill would also give states standing to sue the secretary of Homeland Security “for injunctive relief if immigration actions such as parole, violation of detention requirements, or other policy failures harm that state or its citizens.”

States might be able to stop presidents from abusing the parole provision, but the other objectives are problematic.

When Collins asked Immigration and Customs Enforcement to determine what additional resources it would need to enforce the mandatory detention provisions in the act, ICE responded that it would need at least 64,000 more beds. This would require a $3.2 billion increase in detention funding.

ICE subsequently issued a new estimate stating that the cost of implementing the mandatory detention provisions would be around $26 billion in the first year, or 174 percent more than current funding for detention facilities. This is based on the assumption that detention facilities would be needed for 800,000 more immigrants.

Will Republicans provide ICE with that additional funding? Except for five Republicans who did not vote, GOP support for the act was unanimous; 37 Democrats voted for it too. That doesn’t necessarily mean that they are willing or able to provide the funds needed to implement it.

The act would also let states to sue the federal government if the “state or its residents experience harm, including financial harm in excess of $100” because of decisions to release immigrants from custody; failure to detain immigrants subject to a removal order; failure to comply with requirements for inspecting individuals seeking admission into the United States, including requirements for asylum interviews; violation of statutory limitations on parole grants; and failure to stop issuing visas to nationals of a country that unreasonably refuses to accept nationals of that country.

What would such lawsuits accomplish? States that can show the requisite harm would have standing to seek an injunction to prevent the government from releasing a specified group of undocumented immigrant detainees. But such an injunction would have little value if the government doesn’t have the detention facilities needed to detain the immigrants.

Moreover, states that can show the requisite harm would have standing to seek an injunction that would require the government to detain immigrants subject to removal orders. Yet this may not be feasible either. There are 1.4 million immigrants who are subject to final removal orders.

States that can show the requisite harm would have standing to seek injunctions requiring the government to conduct proper inspections at the border, which also would require additional resources. In addition to illegal border crossers, U.S. Customs and Border Protection has to screen all of the immigrants, returning American citizens, and imported cargo that arrives at more than 300 land, air and sea ports of entry.

States that can show the requisite harm would have standing to seek an injunction that would terminate parole grants that violate the limits in the parole provision. This provision gives the DHS secretary discretionary authority to grant parole “under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.”

This ground would not require additional resources. It just would require the government to stop violating the limits of the parole provision. Consequently, injunctive relief could achieve this objective.

And such relief is needed. As of Feb. 29, 2024, the Biden administration had paroled 2,062,441 immigrants into the country.

States that can show the requisite harm would have standing to seek an injunction that would require the government to exercise its authority to sanction countries that refused to take back their nationals when they are deported.

The Immigration and Nationality Act provides that “[o]n being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country … the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both.”

This is a foreign policy issue, so the courts might not want to intervene. Denying visas to the nationals of uncooperative countries would jeopardize our relations with such countries.

The take-away is that Congress can’t force a president to comply with mandatory detention provisions in the Immigration and Nationality Act by adding more mandatory detention provisions, or by giving states standing to enlist the aid of the courts.

The solution is for Congress to provide the government with the funds it needs to enforce the mandatory detention provisions in the Immigration and Nationality Act and use its oversight powers to monitor the way the funds are used.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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