How to Defy Federal Immigration Authorities and Win

A new law in California will limit how much the state cooperates with the federal government on immigration enforcement.

That’s irritating to some activists, like D.A. King.

King is the founder of the Dustin Inman Society, a Georgia-based non-profit group that supports stricter enforcement of immigration laws. He thinks it’s hypocritical for immigration doves to oppose laws like Arizona’s SB 1070 but simultaneously support the TRUST Act in California.

“When something happens on a state and local level that advances their cause, then it’s ‘justice,’” he said. “It’s clearly illegal for states to do what they’ve done to curb enforcement of federal immigration laws.”

But there are some key differences between the TRUST Act and SB 1070, the Arizona law that was gutted by the Supreme Court in June 2012.

The TRUST Act defies federal requests to detain undocumented immigrants if they are not serious criminals, and if they have already made bail or served their sentence. Under a program called Secure Communities, U.S. Immigration and Customs Enforcement (ICE) asks local officers to hold potential immigration offenders so that they might be taken into federal custody.

The State of California sees these requests to hold arrested immigrants as voluntary — and the new law reflects that belief.

Bill Ong Hing, a professor at the University of San Francisco School of Law and a TRUST Act supporter, explains how that might help the law’s chance in court:

“The problem that Arizona ran into was that it was trying to pass its own immigration laws that would keep people out,” he said.

The TRUST Act doesn’t actively work to either expel immigrants or let them in, Hing said. That means that it isn’t interfering with federal immigration law, even if it’s choosing to ignore a federal program.

Of course, opponents could still file a lawsuit that challenges the measure.

But Hing and several other immigration law professors think that a case would fall flat, since the law is so limited in scope.

It’s more a symbolic move than a broad policy change, since it doesn’t stop federal immigration agents from making arrests or pursuing suspects, he argued.

“This just makes it a little more inconvenient for ICE, but ICE can still go after them, for sure.”

Update, Nov. 26, 2013: An earlier version of this story said Bill Ong Hing was currently a professor at UC Davis. He is a professor at the University of San Francisco School of Law and professor emeritus at U.C. California.

Ted Hesson was formerly the immigration editor at Fusion, covering the issue from Washington, D.C. He also writes about drug laws and (occasionally) baseball. On the side: guitars, urban biking, and fiction.