President Donald J. Trump Signed S.5 into Law
TLDR
This act requires mandatory detention of non-citizens charged with or convicted of theft-related crimes, and empowers state attorneys general to sue federal authorities for failing to enforce these detention requirements if states experience harm exceeding $100. The law amends multiple sections of the Immigration and Nationality Act to strengthen enforcement mechanisms and limit parole options.
The “Laken Riley Act” is designed to address the detention and custody of certain aliens (non-citizens) in the United States who have been charged with or convicted of specific crimes, particularly theft-related offenses.
Key Provisions of the Act:
-
Detention of Certain Aliens Who Commit Theft (Section 2):
- Amends Section 236© of the Immigration and Nationality Act (INA) to require the Secretary of Homeland Security to take into custody aliens who:
- Are inadmissible under specific sections of the INA (e.g., for criminal or security-related grounds).
- Are charged with, arrested for, convicted of, or admit to committing crimes such as burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or any crime resulting in death or serious bodily injury.
- Defines key terms like “burglary,” “theft,” “larceny,” etc., based on the jurisdiction where the acts occurred.
- Requires the Secretary of Homeland Security to issue a detainer for such aliens and take them into custody if they are not already detained by federal, state, or local authorities.
- Amends Section 236© of the Immigration and Nationality Act (INA) to require the Secretary of Homeland Security to take into custody aliens who:
-
Enforcement by State Attorneys General (Section 3):
- Grants state attorneys general or other authorized state officers the authority to take legal action against the Secretary of Homeland Security or the Attorney General if they believe the federal government has failed to enforce immigration detention and removal requirements, resulting in harm to the state or its residents.
- Harm is defined broadly and includes financial harm exceeding $100.
- Courts are required to expedite such cases.
-
Amendments to Other Sections of the INA:
- The act makes several amendments to other sections of the INA to strengthen enforcement mechanisms, including:
- Section 235(b): Allows state attorneys general to enforce detention and removal requirements for aliens applying for admission to the U.S.
- Section 236: Expands state enforcement authority regarding the release or parole of aliens.
- Section 243: Adds penalties for failing to discontinue granting visas to certain individuals.
- Section 212(d)(5): Limits the use of parole for aliens and allows state enforcement if parole is granted improperly.
- Section 241(a)(2): Strengthens detention requirements during the removal period and allows state enforcement.
- The act makes several amendments to other sections of the INA to strengthen enforcement mechanisms, including:
-
Limit on Injunctive Relief (Section 3(f)):
- Clarifies that certain injunctive relief limitations do not apply to actions brought under this act.
The act aims to:
- Strengthen the enforcement of immigration laws, particularly for non-citizens who commit theft or other specified crimes.
- Ensure that such individuals are detained and taken into federal custody.
- Empower state attorneys general to hold federal authorities accountable for failing to enforce immigration laws, especially when such failures harm states or their residents.
As written, raises several potential concerns and criticisms, both legal and practical.
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Potential for Overreach and Broad Enforcement
- Vague Definitions: The act broadly defines crimes like “theft,” “larceny,” and “shoplifting” based on the jurisdiction where the acts occurred. This could lead to inconsistent enforcement, as these terms may vary widely across states and localities.
- Low Threshold for Harm: The act allows state attorneys general to sue the federal government if a state or its residents experience harm, including financial harm exceeding $100. This is an extremely low threshold and could lead to frivolous or excessive litigation.
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Erosion of Federal Authority
- State vs. Federal Power: The act empowers state attorneys general to sue the federal government over immigration enforcement decisions. This could create conflicts between state and federal authorities, undermining the federal government’s exclusive authority over immigration policy under the U.S. Constitution.
- Judicial Overload: By requiring courts to expedite cases brought by state attorneys general, the act could overwhelm the judicial system with immigration-related litigation.
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Due Process Concerns
- Mandatory Detention: The act mandates detention for aliens charged with or convicted of certain crimes, without explicitly providing for individualized assessments or due process protections. This could lead to the detention of individuals who pose no threat or who have committed minor offenses.
- Presumption of Guilt: The act applies to aliens who are merely charged with a crime, not just those convicted. This could result in the detention of individuals who are later found innocent.
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Humanitarian and Practical Concerns
- Impact on Immigrant Communities: The act could disproportionately target immigrant communities, creating fear and distrust of law enforcement. This could discourage immigrants from reporting crimes or cooperating with authorities.
- Resource Strain: Mandating the detention of all aliens charged with theft or related crimes could strain federal detention facilities and resources, leading to overcrowding and poor conditions.
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Potential for Racial Profiling and Discrimination
- Bias in Enforcement: The act could incentivize law enforcement to target individuals based on their immigration status or perceived ethnicity, leading to racial profiling and discrimination.
- Disproportionate Impact: Immigrants, particularly those from marginalized communities, may face harsher enforcement under this act, even for minor offenses.
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Conflict with Existing Immigration Laws
- Parole Restrictions: The act limits the use of parole for aliens, requiring it to be granted only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. This could conflict with existing policies that use parole for broader humanitarian purposes, such as reuniting families or addressing emergencies.
- Interference with Prosecutorial Discretion: The act could undermine the ability of federal immigration authorities to exercise discretion in individual cases, which is a key component of the immigration system.
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Financial and Administrative Burden
- Cost to States and Federal Government: The act could impose significant financial burdens on both state and federal governments, particularly through increased litigation and detention costs.
- Bureaucratic Challenges: Implementing the act’s provisions could create administrative challenges for federal agencies, such as Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS).
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Potential for Political Exploitation
- Politicization of Immigration: The act could be used as a political tool to target specific immigrant groups or advance anti-immigrant agendas, rather than addressing legitimate public safety concerns.
- Symbolic vs. Substantive Impact: The act may be more symbolic than effective, as it focuses on theft and related crimes, which are not the most significant public safety issues associated with immigration.
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Lack of Evidence-Based Justification
- Unclear Necessity: The act does not provide evidence that theft or related crimes committed by non-citizens are a widespread or systemic problem that necessitates such sweeping measures.
- Focus on Minor Offenses: By targeting theft and shoplifting, the act may divert resources away from addressing more serious crimes.
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Potential for International Criticism
- Human Rights Concerns: The act’s mandatory detention provisions and low threshold for harm could draw criticism from international human rights organizations, as they may be seen as overly punitive and inconsistent with human rights standards.
While the Laken Riley Act aims to address concerns about crimes committed by non-citizens, its broad and punitive provisions raise significant legal, practical, and ethical concerns. Critics may argue that the act could lead to overreach, discrimination, and unnecessary strain on resources, while failing to address the root causes of crime or improve public safety in a meaningful way. Balancing immigration enforcement with due process, fairness, and humanitarian considerations remains a critical challenge.
On Wednesday, January 29, 2025, the President signed into law:
S. 5, the “Laken Riley Act,” which requires the Secretary of Homeland Security to take into custody aliens who have been charged in the United States with theft, and for other purposes.
Text of the Laken Riley Act:
S.5
One Hundred Nineteenth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Friday,
the third day of January, two thousand and twenty five
An Act
To require the Secretary of Homeland Security to take into custody
aliens who have been charged in the United States with theft, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Laken Riley Act''.
SEC. 2. DETENTION OF CERTAIN ALIENS WHO COMMIT THEFT.
Section 236(c) of the Immigration and Nationality Act (8 U.S.C.
1226(c)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (C), by striking ``or'';
(B) in subparagraph (D), by striking the comma at the end
and inserting ``, or''; and
(C) by inserting after subparagraph (D) the following:
(E)(i) is inadmissible under paragraph (6)(A), (6)(C), or
(7) of section 212(a); and
``(ii) is charged with, is arrested for, is convicted of,
admits having committed, or admits committing acts which
constitute the essential elements of any burglary, theft,
larceny, shoplifting, or assault of a law enforcement officer
offense, or any crime that results in death or serious bodily
injury to another person,'';
(2) by redesignating paragraph (2) as paragraph (4); and
(3) by inserting after paragraph (1) the following:
``(2) Definition.--For purposes of paragraph (1)(E), the terms
`burglary', `theft', `larceny', `shoplifting', `assault of a law
enforcement officer', and `serious bodily injury' have the meanings
given such terms in the jurisdiction in which the acts occurred.''
``(3) Detainer.--The Secretary of Homeland Security shall issue
a detainer for an alien described in paragraph (1)(E) and, if the
alien is not otherwise detained by Federal, State, or local
officials, shall effectively and expeditiously take custody of the
alien.''.
SEC. 3. ENFORCEMENT BY ATTORNEY GENERAL OF A STATE.
(a) Inspection of Applicants for Admission.--Section 235(b) of the
Immigration and Nationality Act (8 U.S.C. 1225(b)) is amended--
(1) by redesignating paragraph (3) as paragraph (4); and
(2) by inserting after paragraph (2) the following:
``(3) Enforcement by attorney general of a state.--The attorney
general of a State, or other authorized State officer, alleging a
violation of the detention and removal requirements under paragraph
(1) or (2) that harms such State or its residents shall have
standing to bring an action against the Secretary of Homeland
Security on behalf of such State or the residents of such State in
an appropriate district court of the United States to obtain
appropriate injunctive relief. The court shall advance on the
docket and expedite the disposition of a civil action filed under
this paragraph to the greatest extent practicable. For purposes of
this paragraph, a State or its residents shall be considered to
have been harmed if the State or its residents experience harm,
including financial harm in excess of $100.''.
(b) Apprehension and Detention of Aliens.--Section 236 of the
Immigration and Nationality Act (8 U.S.C. 1226), as amended by this
Act, is further amended--
(1) in subsection (e)--
(A) by striking ``or release''; and
(B) by striking ``grant, revocation, or denial'' and insert
``revocation or denial''; and
(2) by adding at the end the following:
``(f) Enforcement by Attorney General of a State.--The attorney
general of a State, or other authorized State officer, alleging an
action or decision by the Attorney General or Secretary of Homeland
Security under this section to release any alien or grant bond or
parole to any alien that harms such State or its residents shall have
standing to bring an action against the Attorney General or Secretary
of Homeland Security on behalf of such State or the residents of such
State in an appropriate district court of the United States to obtain
appropriate injunctive relief. The court shall advance on the docket
and expedite the disposition of a civil action filed under this
subsection to the greatest extent practicable. For purposes of this
subsection, a State or its residents shall be considered to have been
harmed if the State or its residents experience harm, including
financial harm in excess of $100.''.
(c) Penalties.--Section 243 of the Immigration and Nationality Act
(8 U.S.C. 1253) is amended by adding at the end the following:
``(e) Enforcement by Attorney General of a State.--The attorney
general of a State, or other authorized State officer, alleging a
violation of the requirement to discontinue granting visas to citizens,
subjects, nationals, and residents as described in subsection (d) that
harms such State or its residents shall have standing to bring an
action against the Secretary of State on behalf of such State or the
residents of such State in an appropriate district court of the United
States to obtain appropriate injunctive relief. The court shall advance
on the docket and expedite the disposition of a civil action filed
under this subsection to the greatest extent practicable. For purposes
of this subsection, a State or its residents shall be considered to
have been harmed if the State or its residents experience harm,
including financial harm in excess of $100.''.
(d) Certain Classes of Aliens.--Section 212(d)(5) of the
Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) is amended--
(1) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''; and
(2) by adding at the end the following:
``(C) The attorney general of a State, or other authorized State
officer, alleging a violation of the limitation under subparagraph (A)
that parole solely be granted on a case-by-case basis and solely for
urgent humanitarian reasons or a significant public benefit, that harms
such State or its residents shall have standing to bring an action
against the Secretary of Homeland Security on behalf of such State or
the residents of such State in an appropriate district court of the
United States to obtain appropriate injunctive relief. The court shall
advance on the docket and expedite the disposition of a civil action
filed under this subparagraph to the greatest extent practicable. For
purposes of this subparagraph, a State or its residents shall be
considered to have been harmed if the State or its residents experience
harm, including financial harm in excess of $100.''.
(e) Detention.--Section 241(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1231(a)(2)) is amended--
(1) by striking ``During the removal period,'' and inserting
the following:
``(A) In general.--During the removal period,''; and
(2) by adding at the end the following:
``(B) Enforcement by attorney general of a state.--The
attorney general of a State, or other authorized State officer,
alleging a violation of the detention requirement under
subparagraph (A) that harms such State or its residents shall
have standing to bring an action against the Secretary of
Homeland Security on behalf of such State or the residents of
such State in an appropriate district court of the United
States to obtain appropriate injunctive relief. The court shall
advance on the docket and expedite the disposition of a civil
action filed under this subparagraph to the greatest extent
practicable. For purposes of this subparagraph, a State or its
residents shall be considered to have been harmed if the State
or its residents experience harm, including financial harm in
excess of $100.''.
(f) Limit on Injunctive Relief.--Section 242(f) of the Immigration
and Nationality Act (8 U.S.C. 1252(f)) is amended by adding at the end
following:
``(3) Certain actions.--Paragraph (1) shall not apply to an
action brought pursuant to section 235(b)(3), subsections (e) or
(f) of section 236, or section 241(a)(2)(B).''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.