Texas SB 4: What It Means

You may have heard about a new Texas immigration law referred to as “SB 4,” which stands for Texas Senate Bill 4. Regardless of where you stand politically on the question of immigration, there are some important things to know about this law that will impact our entire state, including U.S. citizens.

What is SB 4? What does it do?

At its most basic, this law makes it a criminal offense for non-citizens to fall into certain categories based on what kind of status (or lack of status) they have and how they entered Texas. Specifically, there will now be sections in our Penal Code that criminalize illegal entry, illegal reentry and refusal to obey a judge’s order to leave the U.S.

Why are people upset about SB 4?

One of the things that makes this law so controversial is that we already have a federal system of immigration laws and authorities that determine whether and when a non-citizen can be removed from the U.S. So, SB 4 gives Texas state police officers and judges the ability—or rather, the burden—of enforcing immigration laws that have always been handled by federal immigration judges, ICE and Border Patrol.

Why is SB 4 in the news today?

Understandably, this law has been the cause of much confusion and many constitutional challenges. Today, however, the U.S. Supreme Court lifted a temporary block on implementation of SB 4. While this is still just the beginning of legal arguments for the courts, police officers in Texas can immediately start arresting people for these new crimes.

Who can be arrested?

First, the crime of illegal entry happens when anyone who is not a U.S. citizen enters, or tries to enter, Texas from another country through any location that is not a “lawful port of entry.” Practically speaking, this law is mostly going to apply to people who cross the Texas-Mexico border without being “inspected,” or formally allowed in by immigration authorities. This is defined as a Class B misdemeanor, but it can become a state jail felony if the person accused has been convicted of these crimes before. One controversial aspect of SB4 is that it applies to everyone who falls into this description, even if they have legal status. Ie. legal permanent residents, or “green card holders”; people who have been granted asylum; and DACA (Deferred Action for Childhood Arrivals) recipients, who generally were brought to the U.S. by their parents when they were children. These categories of people can only raise their status as a defense if they go to trial, which happens long after their arrest. Additionally, this road to trial includes several other trap doors, including magistration. Magistration is when a state judge first has the opportunity to tell a newly-arrested person about their charges. For these new offenses, the state judge can order the defendant to be deported before they have the chance to talk to their family or a lawyer.

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The crime of illegal reentry is similar, but more sweeping and severe. It applies to any non-citizen who enters, tries to enter, or is simply found in Texas after they were denied entry into the U.S. or left the U.S. after being ordered removed. This is a Class A misdemeanor, but it could be a second- or even third-degree felony, depending on the person’s criminal history. There are no defenses to this crime.

Here is just one example of the way this law could apply: Martin was born in El Salvador. When he was 18 years old, Martin applied for a student visa to study here but was denied because he did not meet all the qualifications. A few years later, Martin successfully got an employment visa so he could come here to work in Texas. While he was here, he married a U.S. citizen and adjusted his status so he could become a legal permanent resident. At no point has Martin overstayed a visa or let his status expire—he has always been in the U.S. legally. But now he can be arrested and forced to leave the U.S. at the Mexican border, simply because he is a non-citizen found in Texas after being denied entry.

The third crime is refusing to comply with an order to return to a foreign country. In this situation, a state judge has ordered the defendant “to return to the foreign nation from which the person entered.” Again, practically speaking, this is going to mean Mexico, regardless of whether the defendant is actually from Mexico.

I’m a non-citizen, or I know people who could be arrested because of this new law. What should we do if we encounter the police? The most important thing to keep in mind is that you do NOT have to respond to any questions about your status.

If the police come up to you on the street or at work and start talking to you, you can ask: “Am I being detained?” Unless they have reasonable suspicion to think you are doing something illegal, then you can ask if you are free to leave and, if so, calmly walk away. If they insist that you are being detained and that you are not free to leave, then you should ask for an attorney and decline to answer any more questions.

The police need reasonable suspicion to pull you over while driving a car (example: a traffic violation like speeding). This means you are not free to leave, but you can still control how much information you give them. You are expected to provide proof of insurance and your driver’s license. If you do not have a driver’s license, then you will need to provide your name, but you still do not have to answer any questions about your status or how you got to Texas. If the police arrest you, remain calm and remember that you only have to give them your name, date of birth and address.

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The police can ask you whatever questions they want, but that does not mean you always have to answer them. Whether you are required to answer depends on the question and the context, and you can—and should—stay silent if asked about your status or how you got to Texas. You are not lying by exercising your rights against self-incrimination.

In summary, we may not know what will happen to SB 4 in the courts, but we do know that SB 4 is now in effect. It creates new state-level offenses that will certainly lead to the arrest of many non-citizens in our communities—including those who have lawful status. To protect yourself and your loved ones, remember that you never have to answer a police officer’s questions about your status. If you are detained or arrested, ask for an attorney and utilize your right to remain silent.

Sorsha Huff, Immigration Division Chief, Deandra Grant Law